Bureau of Customs and Border Protectiontion Security, Department of Homeland Security, Washington,...

Bureau of Customs andBorder Protection

CBP Decision

(CBP Dec. 05–01)

BONDS

APPROVAL TO USE AUTHORIZED FACSIMILESIGNATURES AND SEALS

The use of facsimile signatures and seals on Customs bonds by thefollowing corporate surety has been approved effective this date:

XL Specialty Insurance Company

Authorized facsimile signature on file for:

Paul D. Amstutz, Attorney-in-fact

The corporate surety has provided U.S. Customs and Border Pro-tection with copies of the signatures to be used, copies of the corpo-rate seal, and certified copies of the corporate resolution agreeing tobe bound by the facsimile signatures and seals. This approval iswithout prejudice to the surety’s right to affix signatures and sealsmanually.

DATE: January 28, 2005

GLEN E. VEREB,Chief,

Entry Procedures and Carriers Branch.

1

General Notices

Departmental Advisory Committee on CommercialOperations of Customs and Border Protection

and Related Functions (COAC)

ACTION: Notice of meeting and announcement of membership.

SUMMARY: This notice announces the date, time, and location forthe first meeting of the ninth term of the Departmental AdvisoryCommittee on Commercial Operations of Customs and Border Pro-tection and Related Functions (COAC) and the expected agenda forits consideration. It also announces the new members of the commit-tee.

DATES: The next meeting of the COAC will be held on Tuesday,February 15, 2005, 9 a.m. to 1 p.m.

ADDRESSES: The meeting of the Departmental Advisory Commit-tee on Commercial Operations of Customs and Border Protectionand Related Functions (COAC) will be held in The Ronald ReaganInternational Trade Center Horizon Ballroom, 1300 PennsylvaniaAvenue, NW Washington, D.C. 20229 [phone 202–344–1440; fax202–344–1969].

FOR FURTHER INFORMATION CONTACT: Ms. Monica Fra-zier, Office of the Assistant Secretary for Border and TransportationSecurity, Department of Homeland Security, Washington, DC 20528;telephone 202–282–8431; facsimile 202–282–8504.

SUPPLEMENTARY INFORMATION: The first meeting of theninth term of Departmental Advisory Committee on Commercial Op-erations of Customs and Border Protection and Related Functions(COAC) will be held at the date, time and location specified above.This notice announces the expected agenda for its consideration andthe new members of the committee. This meeting is open to the pub-lic; however, participation in COAC deliberations is limited to COACmembers, Homeland Security and Treasury Department officials,and persons invited to attend the meeting for special presentations.Since seating is limited, all persons attending this meeting shouldprovide notice by 2:00 P.M. EST on Wednesday, February 9, 2005 toMs. Monica Frazier, Office of the Assistant Secretary for Border andTransportation Security, Department of Homeland Security, Wash-ington, DC 20528; telephone 202–282–8431; facsimile 202–282–8504.

Information on Services for Individuals with Disabilities: Forinformation on facilities or services for individuals with disabilitiesor to request special assistance at the meeting, contact Ms. MonicaFrazier, Office of the Assistant Secretary for Border and Transporta-

2 CUSTOMS BULLETIN AND DECISIONS, VOL. 39, NO. 8, FEBRUARY 16, 2005

tion Security, Department of Homeland Security, Washington, DC20528; telephone 202–282–8431; facsimile 202–282–8504, as soon aspossible.

Draft Agenda: The COAC is expected to pursue the followingagenda, which may be modified prior to the meeting:

1. MTSA Subcommittee2. Security Subcommittee

a. Advance Cargo Informationb. WCO Securityc. C-TPAT Process Review

3. Automation Issuesa. ACE funding and development scheduleb. ACS downtime

4. International Trade Data System (ITDS)5. Creation of Infrastructure Subcommittee6. Bioterrorism Act7. Focused Assessment Program

Membership: The twenty members for the ninth term of COAC are:Anthony Barone, PfizerSandra M. Fallgatter, JC Penny Purchasing Corp.Jonathan Gold, Retail Industry Leaders Assn.D. Scott Johnson, Gap, Inc.Chris Koch, World Shipping CouncilMarian Ladner, Strasburger and PriceBruce Leeds, BoeingMary Jo Muoio, Barthco International, Inc.Karen Phillips, Canadian NationalPeggy Rutledge, Hapag-Lloyd Container LineNorman Schenk, United Parcel ServiceLisa Schimmelpfenning, Wal-Mart StoresRobert Schueler, Jr., Delphi CorporationKevin M. Smith, General Motors Corp.Curtis Spencer, IMS WorldwideKatherine M. Terricciano, Philips Electronics N. AmericaThomas G. Travis, Sandler, Travis & RosenbergHenry White, Institute of International Container LessorsJ Michael Zachary, Port of TacomaFederico Zuniga, National Customs Brokers and Forwarders

Association of America

C. STEWART VERDERY, JR.,Assistant Secretary for Border and

Transportation Security Policy and Planning.

Dated: January 26, 2005

[Published in the Federal Register, January 31, 2005 (70 FR 4880)]

BUREAU OF CUSTOMS AND BORDER PROTECTION 3

Automated Commercial Environment (ACE):Elimination of C-TPAT Requirement to Establish ACE

Importer and Broker Accounts

AGENCY: Customs and Border Protection; Department of Home-land Security.

ACTION: General notice.

SUMMARY: This notice announces a change to the application re-quirements when applying to become an Importer or Broker Accountso as to access the Automated Commercial Environment (ACE) Se-cure Data Portal (‘‘ACE Portal’’) or to participate in any ACE test.Specifically, applicants seeking to establish importer or broker ac-counts so as to access the ACE Portal, or to participate in any ACEtest, are no longer required to provide a statement certifying partici-pation in the Customs Trade Partnership Against Terrorism(C-TPAT). Participation in C-TPAT has never been a requirement toestablish a carrier account.

EFFECTIVE DATES: The elimination of the C-TPAT requirementto establish an account or participate in any ACE test is effective im-mediately.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Mari-cich via email at [email protected], or by telephone at (703)668–2406.

SUPPLEMENTARY INFORMATION:

Background

On May 1, 2002, CBP published a General Notice in the FederalRegister (67 FR 21800) announcing a plan to conduct a NationalCustoms Automation Program (NCAP) test of the first phase of theAutomated Commercial Environment. In this notice, CBP statedthat it planned to select approximately forty importer accounts fromthe list of qualified applicants for the initial deployment of this test.The notice also stated that additional participants may be selectedthroughout the duration of this test. In order to be considered as oneof the initial participants, importers’ applications had to be receivedby CBP by June 1, 2002. Applications had to include the importername, a unique importer number, a statement certifying participa-tion in C-TPAT, and a statement certifying the capability to connectto the Internet.

On June 18, 2002, CBP extended the application period for thosedesiring to be one of the initial importer participants by publishing asecond General Notice in the Federal Register (67 FR 41572). Thatnotice emphasized that applications to be an initial participant had


to be submitted to CBP prior to August 1, 2002. Applications wouldbe accepted after that date, but parties who so applied would beplaced on a waiting list and considered for participation pending ex-pansion of the technology.

On February 4, 2004, CBP published a third General Notice in theFederal Register (69 FR 5362) announcing the next step towardthe full electronic processing of commercial importations in ACE,with a focus on identifying authorized importers and brokers to par-ticipate in the test to implement the Periodic Monthly StatementProcess. The Notice stated that participants in this test would ben-efit by having access to operational data through the ACE Portal, en-joying the capability of being able to interact electronically withCBP, and making payments of duties and fees on a periodic monthlybasis. Customs brokers, in order to apply, were required to providenames of the initial forty-one importers participating in the test bywhom they had been or will have been designated as the authorizedbroker. In order to establish an ACE Broker Account, a broker wasfurther required to file an application for participation which was toinclude the broker name, unique identification number, filer code,statement certifying participation in C-TPAT, statement certifyingthe capability of connecting to the Internet, statement certifying ca-pability of making periodic payment via the Automated ClearingHouse (ACH) Credit or ACH Debit, and a statement certifying capa-bility of filing entry/entry summary via Automated Broker Interface(ABI).

Also on February 4, 2004, CBP published a General Notice in theFederal Register (69 FR 5360) which described the applicationprocess to be followed in order to establish a truck carrier account soas to be eligible to participate in the electronic truck manifest func-tionality. C-TPAT participation is not required in order to establish atruck carrier account.

On September 8, 2004, CBP published a General Notice in theFederal Register (69 FR 54302), reminding the public that import-ers and their designated brokers may still apply to establish ac-counts so as to participate in the Periodic Monthly Statement Pro-cess. The Notice again invited customs brokers to participate in theACE Portal test generally.

C-TPAT Participation No Longer Required

In order to encourage maximum participation in ACE and makebenefits such as periodic monthly payment widely available, the ap-plication process to establish an importer or broker account or toparticipate in any ACE test will no longer require that a statementcertifying C-TPAT participation be provided. It is important to notethat this in no way indicates that the support of CBP managementfor the C-TPAT program has diminished. C-TPAT participants will


continue to realize specific benefits such as reduced examinations.Removal of the C-TPAT requirement for participation in ACE is in-tended to increase the usage of ACE so as to further streamline thecommercial importation process, which will benefit both the import-ing community and CBP.


JAYSON P. AHERN,Assistant Commissioner,

Office of Field Operations.

[Published in the Federal Register, February 1, 2005 (70 FR 5199)]


DEPARTMENT OF HOMELAND SECURITY,OFFICE OF THE COMMISSIONER OF CUSTOMS.

Washington, DC, February 2, 2005The following documents of the Bureau of Customs and Border

Protection (‘‘CBP’’), Office of Regulations and Rulings, have been de-termined to be of sufficient interest to the public and CBP field of-fices to merit publication in the CUSTOMS BULLETIN.

MICHAEL T. SCHMITZ,Assistant Commissioner,

Office of Regulations and Rulings.

r

MODIFICATION OF RULING LETTER AND REVOCATIONOF TREATMENT RELATING TO CLASSIFICATION OF

FRUITS IN ACETIC ACID

AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security.

ACTION: Notice of modification of ruling letter and revocation oftreatment relating to the classification of a mixture of fruits and ed-ible plant parts in acetic acid.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19U.S.C. 1625(c)), as amended by section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that Customs and Border Protection (CBP) ismodifying a ruling letter pertaining to the tariff classification of amixture of fruits and edible plant parts in acetic acid and revokingany treatment previously accorded by CBP to substantially identicaltransactions. Notice of the proposed modification was published inthe Customs Bulletin of December 15, 2004, Vol. 38, No. 51. No com-ments were received.

EFFECTIVE DATE: Merchandise entered or withdrawn fromwarehouse for consumption on or after April 17, 2005.

FOR FURTHER INFORMATION CONTACT: Peter T. Lynch,General Classification Branch, 202–572–8778.



Background

On December 8,1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’These concepts are premised on the idea that in order to maximizevoluntary compliance with customs laws and regulations, the tradecommunity needs to be clearly and completely informed of its legalobligations. Accordingly, the law imposes a greater obligation onCBP to provide the public with improved information concerning thetrade community’s responsibilities and rights under the customs andrelated laws. In addition, both the trade and CBP share responsibil-ity in carrying out import requirements. For example, under section484 of the Tariff Act of 1930, as amended, (19 U.S.C. §1484) the im-porter of record is responsible for using reasonable care to enter,classify and value imported merchandise, and provide any other in-formation necessary to enable CBP to properly assess duties, collectaccurate statistics and determine whether any other applicable legalrequirement is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), as amended by section 623 of Title VI, a notice was pub-lished on December 15, 2004, in the Customs Bulletin, Volume 38,Number 51, proposing to modify NY J87437, dated October 27, 2003,pertaining to the tariff classification of a mixture of fruits and edibleplant parts in acetic acid under the Harmonized Tariff Schedule ofthe United States (HTSUS). No comments were received in reply tothe notice.

In NY J87437, dated October 27, 2003, the classification of a prod-uct commonly referred to as a mixture of fruits and edible plantparts in acetic acid was determined to be in heading 2001.90.3800,HTSUS, which provides for other vegetables prepared or preservedby vinegar or acetic acid. Since the issuance of that ruling, CBP hashad a chance to review the classification of this merchandise and hasdetermined that the classification is in error. None of the articlescontained in the product are vegetables. Cranberries and apricotsare fruits, and rosemary is an herb. Fruits and other edible parts ofplants prepared or preserved by vinegar or acetic acid are classifiedin subheading 2001.90.60, HTSUS.

As stated in the proposal notice, this modification will cover anyrulings on this merchandise which may exist but have not been spe-


cifically identified. Any party who has received an interpretive rul-ing or decision (i.e., ruling letter, internal advice memorandum ordecision or protest review decision) on the merchandise subject tothis notice, should have advised CBP during the notice period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP is re-voking any treatment previously accorded by CBP to substantiallyidentical transactions. This treatment may, among other reasons, bethe result of the importer’s reliance on a ruling issued to a thirdparty, CBP personnel applying a ruling of a third party to importa-tions of the same or similar merchandise, or the importer’s or CBP’sprevious interpretation of the HTSUS. Any person involved in sub-stantially identical transactions should have advised CBP duringthe notice period. An importer’s failure to advise CBP of substan-tially identical transactions or of a specific ruling not identified inthis notice, may raise issues of reasonable care on the part of the im-porter or their agents for importations of merchandise subsequent tothe effective date of this notice.

Pursuant to 19 U.S.C. 1625(c)(1), CBP is modifying NY J87437,and revoking any other ruling not specifically identified to reflect theproper classification of the merchandise pursuant to the analysis setforth in Headquarters Ruling Letter (HQ) 967015 (see ‘‘Attachment’’to this document). Additionally, pursuant to 19 U.S.C. 1625(c)(2),CBP is revoking any treatment previously accorded by CBP to sub-stantially identical transactions.

In accordance with 19 U.S.C. 1625(c), this ruling will become effec-tive 60 days after publication in the Customs Bulletin.


John Elkins for MYLES B. HARMON,Director,

Commercial Rulings Division.

Attachment


DEPARTMENT OF HOMELAND SECURITY.BUREAU OF CUSTOMS AND BORDER PROTECTION,

HQ 967015January 25, 2005

CLA–2 RR:CR:GC 967015ptlCategory: Classification

TARIFF NO.: 2001.90.60

MR. SHACHAR GATSHONFELD’S USA, INC.16871 Noyes AvenueIrvine, CA 92606

RE: Fruit and Herbs Preserved in Acetic Acid; Modification of NY J87437

DEAR MR. GAT:On October 27, 2003, the National Commodity Specialist Division of Cus-

toms and Border Protection (CBP) in New York, issued ruling J87437 whichcontained the classification under the Harmonized Tariff Schedule of theUnited States (HTSUS) of two articles. The articles were identified usingyour product item number. According to NY J87437, Item # OV–204296Acontained strawberries and rosemary in canola oil and was classified in sub-heading 2103.90.8000, HTSUS, which provides for mixed condimentsand mixed seasonings . . . other. The other article, Item # OV–204296B con-tains cranberries, rosemary, and apricots in a 4.96 percent acetic acid liquid.That article was classified in subheading 2001.90.3800, HTSUS, whichprovides for vegetables, fruit, nuts and other edible parts of plants, preparedor preserved by vinegar or acetic acid . . . other . . . vegetables . . . other.Since NY J87437 was issued, CBP has reviewed the classification of Item# OV–204296B and determined that it is incorrect for the reasons stated be-low. The classification of the other article classified in NY J87437,OV–204296A, is not affected by this letter.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J87437 waspublished on December 15, 2004, in the Customs Bulletin, Volume 38, Num-ber 51. No comments were received in response to that notice.

FACTS:You have described Item # OV–204296B as being a 500 ml bottle contain-

ing cranberries, rosemary, and apricots in a 4.96 percent acetic acid liquid.CBP Laboratory Report NY20031265, dated September 26, 2003, reportsthat the article contains 4.96 percent acetic acid by weight. Cranberries andapricots are fruits. Rosemary is an herb.

ISSUE:What is the classification of fruits and an herb prepared or preserved in a

solution that is 4.96 percent acetic acid by weight?

LAW AND ANALYSIS:Merchandise is classifiable under the Harmonized Tariff Schedule of the

United States (HTSUS) in accordance with the General Rules of Interpreta-tion (GRIs). The systematic detail of the HTSUS is such that most goods areclassified by application of GRI 1, that is, according to the terms of the head-


ings of the tariff schedule and any relative Section or Chapter Notes. In theevent that the goods cannot be classified solely on the basis of GRI 1, and ifthe headings and legal notes do not otherwise require, the remaining GRIsmay then be applied in order.

The HTSUS subheadings under consideration are as follows:

2001 Vegetables, fruit, nuts and other edible parts of plants, pre-pared or preserved by vinegar or acetic acid:

* * *

2001.90 Other:

Other:

Vegetables:

* * *

2001.90.3800 Other

2001.90.6000 Other

The CBP Laboratory analysis performed on the product indicates that itconsists of ingredients that have been prepared or preserved by acetic acid.Therefore, the product is a good of heading 2001, HTSUS. The ingredientsthat have been prepared or preserved by the acetic acid are cranberries andapricots. These are fruits, products of chapter 8. The additional ingredient,rosemary, is an herb, an edible plant which would, if alone, be classified inchapter 12. Because none of the ingredients of the product are vegetables,the product itself cannot be classified in a subheading which provides forvegetables. Instead, the product is classified in the residual subheading2001.90.60, HTSUS, which provides for other products.

HOLDING:The article in NY J87437, identified as Item # OV–204296B containing

cranberries, apricots and rosemary, in a 4.96 percent acid liquid is classifiedin subheading 2001.90.60, HTSUS, which provides for: Vegetables, fruit,nuts and other edible parts of plants, prepared or preserved by vinegar oracetic acid, other, other, other.

EFFECT ON OTHER RULINGS:NY J87437, dated October 27, 2003, is modified in accordance with this

decision. In accordance with 19 U.S.C. 1625(c), this ruling will become effec-tive 60 days after its publication in the Customs Bulletin.




REVOCATION AND MODIFICATION OF RULING LETTERSAND REVOCATION OF TREATMENT RELATING TOTARIFF CLASSIFICATION OF CERTAIN EXTRUDED

POLYETHYLENE OR POLYPROPYLENE MESH

AGENCY: Bureau of Customs and Border Protection; Departmentof Homeland Security.

ACTION: Notice of revocation and modification of tariff classifica-tion ruling letters and revocation of treatment relating to the classi-fication of certain extruded polyethylene or polypropylene mesh.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19U.S.C. 1625(c)), this notice advises interested parties that Customsand Border Protection (CBP) is revoking three ruling letters andmodifying one ruling letter, each relating to the tariff classificationof extruded polyethylene or polypropylene mesh under the Harmo-nized Tariff Schedule of the United States Annotated (HTSUSA).CBP is also revoking any treatment previously accorded by it to sub-stantially identical merchandise. Notice of the proposed action waspublished on December 1, 2004, in Volume 38, Number 49, of theCUSTOMS BULLETIN. CBP received no comments in response tothe notice.

EFFECTIVE DATE: This action is effective for merchandise en-tered or withdrawn from warehouse for consumption on or afterApril 17, 2005.

FOR FURTHER INFORMATION CONTACT: Kelly Herman,Textiles Branch at (202) 572–8713.


BACKGROUND

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’These concepts are premised on the idea that in order to maximizevoluntary compliance with customs laws and regulations, the tradecommunity needs to be clearly and completely informed of its legalobligations. Accordingly, the law imposes a greater obligation onCBP to provide the public with improved information concerning thetrade community’s responsibilities and rights under the customs andrelated laws. In addition, both the trade and CBP share responsibil-ity in carrying out import requirements. For example, under section484 of the Tariff Act of 1930, as amended (19 U.S.C. §1484), the im-porter of record is responsible for using reasonable care to enter,


classify and value imported merchandise, and provide any other in-formation necessary to enable CBP to properly assess duties, collectaccurate statistics and determine whether any other applicable legalrequirement is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), as amended by section 623 of Title VI, notice proposingto revoke three ruling letters and modify one ruling letter, each per-taining to the tariff classification of extruded polyethylene orpolypropylene mesh was published in the December 1, 2004, CUS-TOMS BULLETIN, Volume 38, Number 49. No comments were re-ceived.

As stated in the proposed notice, this modification will cover anyrulings on this merchandise that may exist but have not been spe-cifically identified. Any party who has received an interpretive rul-ing or decision (i.e., a ruling letter, internal advice memorandum ordecision or protest review decision) on the merchandise subject tothis notice should have advised CBP during the notice period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, Customs isrevoking any treatment previously accorded by CBP to substantiallyidentical transactions. This treatment may, among other reasons, bethe result of the importer’s reliance on a ruling issued to a thirdparty, CBP personnel applying a ruling of a third party to importa-tions of the same or similar merchandise or the importer’s or CBP’sprevious interpretation of the HTSUSA. Any person involved in sub-stantially identical transactions should have advised CBP duringthe notice period. An importer’s failure to advise CBP of substan-tially identical merchandise or of a specific ruling not identified inthis notice, may raise issues of reasonable care on the part of the im-porter or its agents for importations of merchandise subsequent tothe effective date of the final decision on this notice.

In NY C84049, CBP ruled that extruded polyethylene mesh wasclassified in subheading 3920.10.0000, HTSUSA, which provides for‘‘other plates, sheets, film, foil and strip, of plastics, noncellular andnot reinforced, laminated, supported or similarly combined withother materials: of polymers of ethylene.’’ In NY G87431, CBP ruledthat extruded polyethylene plastic was also classified in subheading3920.10.0000, HTSUSA. Since the issuance of those rulings, CBPhas reviewed the classification of these items and has determinedthat the cited rulings are in error. We have determined that the ar-ticles are properly classified in subheading 3926.90.9880, HTSUSA,which provides for ‘‘Other articles of plastics and articles of othermaterials of headings 3901 to 3914: Other: Other, Other.’’

In NY H88635, CBP classified 100% polyethylene open-workwarp knit fabric and extruded polyethylene mesh. CBP ruled thatthe extruded polyethylene mesh was classified in subheading3920.10.0000, HTSUSA. With respect to the extruded polyethylene


mesh, CBP has determined that it is properly classified in subhead-ing 3926.90.9880, HTSUSA, which provides for ‘‘Other articles ofplastics and articles of other materials of headings 3901 to 3914:Other: Other, Other.’’

In NY D80028, CBP ruled that extruded polypropylene mesh wasclassified in subheading 3920.20.0000, HTSUSA, which provides for‘‘other plates, sheets, film, foil and strip, of plastics, noncellular andnot reinforced, laminated, supported or similarly combined withother materials: of polymers of polypropylene.’’ Since the issuance ofthat ruling, CBP has reviewed the classification of this item and hasdetermined that the cited ruling is in error. We have determinedthat the article is properly classified in subheading 3926.90.9880,HTSUSA, which provides for ‘‘Other articles of plastics and articlesof other materials of headings 3901 to 3914: Other: Other, Other.’’

Pursuant to 19 U.S.C. 1625(c)(1), CBP is revoking NY C84049, NYG87431, NY D80029 and modifying NY H88635 and any other rulingnot specifically identified, to reflect the proper classification of ex-truded polyethylene or polypropylene mesh according to the analysiscontained in Headquarters Ruling Letters (HQ) 967346, HQ 967347,HQ 967348 and HQ 967349 as set forth as Attachments A through D,respectively, to this document. Additionally, pursuant to 19 U.S.C.1625(c)(2), CBP is revoking any treatment previously accorded byCBP to substantially identical merchandise.

In accordance with 19 U.S.C. 1625(c), this ruling will become effec-tive 60 days after publication in the CUSTOMS BULLETIN

DATED: January 25, 2005

Gail A. Hamill for MYLES B. HARMON,Director,


Attachments


[ATTACHMENT A]


HQ 967346January 25, 2005

CLA–2 RR:CR:TE 967346 KSHTARIFF NO.: 3926.90.9880

MS. LORI ALDINGERRITE AID CORPORATIONP.O. Box 3165Harrisburg, PA 17105

RE: Revocation of New York Ruling Letter (NY) C84049, dated February 13,1998; Classification of extruded polyethylene mesh.

DEAR MS. ALDINGER:This letter is to inform you that the Bureau of Customs and Border Pro-

tection (CBP) has reconsidered New York Ruling Letter (NY) C84049, issuedto you on February 13, 1998, concerning the classification under the Harmo-nized Tariff Schedule of the United States Annotated (HTSUSA) of extrudedpolyethylene mesh. The article was classified in subheading 3920.10.0000,HTSUSA, which provides for ‘‘other plates, sheets, film, foil and strip, ofplastics, noncellular and not reinforced, laminated, supported or similarlycombined with other materials: of polymers of ethylene.’’ We have reviewedthat ruling and found it to be in error. Therefore, this ruling revokes NYC84049.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY C84049 waspublished on December 1, 2004, in Vol. 38, Number 49, of the CUSTOMSBULLETIN. CBP received no comments.

FACTS:The product consists of a sheet of extruded polyethylene mesh measuring

60 inches by 40 inches. The mesh is made in a continuous extrusion processand not from pre-existing filaments. The mesh is to be used to package anEaster basket.

ISSUE:Whether the extruded polyethylene mesh is classified in heading 3926,

HTSUSA, or heading 3920, HTSUSA.

LAW AND ANALYSIS:Classification under the HTSUSA is made in accordance with the General

Rules of Interpretation (GRI). GRI 1 provides that the classification of goodsshall be determined according to the terms of the headings of the tariffschedule and any relative Section or Chapter Notes. In the event that thegoods cannot be classified solely on the basis of GRI 1, and if the headingsand legal notes do not otherwise require, the remaining GRI may then beapplied. The Explanatory Notes (EN) to the Harmonized Commodity De-scription and Coding System, which represent the official interpretation of


the tariff at the international level, facilitate classification under theHTSUSA by offering guidance in understanding the scope of the headingsand GRI.

Heading 3920, HTSUSA, provides for ‘‘Other plates, sheets, film, foil andstrip, of plastics, noncellular and not reinforced, laminated, supported orsimilarly combined with other materials.’’

Note 10 to Chapter 39, HTSUS, provides:

In headings 3920 and 3921, the expression ‘‘plates, sheets, film, foil andstrip’’ applies only to plates, sheets, film, foil and strip (other than thoseof chapter 54) and to blocks of regular geometric shape, whether or notprinted or otherwise surface-worked, uncut or cut into rectangles (in-cluding squares) but not further worked (even if when so cut they be-come articles ready for use).

The term ‘‘sheets’’ is not defined in the text of the HTSUSA or the Explana-tory Notes. When terms are not so defined, they are construed in accordancewith their common and commercial meaning. Nippon Kogasku (USA), Inc. v.United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercialmeaning may be determined by consulting dictionaries, lexicons, scientificauthorities and other reliable sources. C.J. Tower & Sons v. United States,69 CCPA 128, 673 F.2d 1268 (1982).

Webster’s Third New International Dictionary (Webster’s) (1986) defines‘‘sheeting,’’ in relevant part, as ‘‘1: material in the form of sheets or suitablefor forming into sheets: as . . . b: material (as a plastic) in the form of a con-tinuous film. . . .’’ Id. at 2092. Webster’s defines ‘‘sheet,’’ in relevant part, as‘‘3 a: a broad stretch or surface of something that is usu. thin in comparisonto its length and breadth. . . .’’ Id. at 2091. The Oxford English Dictionary(2d Ed. 1989) defines ‘‘sheet’’ as ‘‘9. a. A relatively thin piece of considerablebreadth of a malleable, ductile, or pliable substance.’’ Id. at 224.

The Court of International Trade has also examined the term sheet invarious cases. In 3G Mermet Fabric Corp. v. United States, 135 F. Supp. 2d151 (2001), the Court defined ‘‘sheet’’ as a ‘‘material in the form of a continu-ous stem covering or coating.’’

In Sarne Handbags Corp. v. United States, 100 F. Supp. 2d 1126 (2000),the Court defined the term ‘‘sheeting’’ as follows:

[T]he common meaning of ‘‘sheeting’’ is material in the form of or suit-able for forming into a broad surface of something that is unusuallythin, or is a material in the form of a continuous thin covering or coat-ing.

In HQ 965889, dated March 17, 2003, geotextile material manufacturedfrom woven mesh visibly coated on both sides with plastics was classified inheading 3926, HTSUSA. In so doing, we determined that the open spaces ofthe geotextile material were large enough that the material could not beconsidered to have a ‘‘broad surface.’’ The unusually wide spacing in theweave interrupts any sort of surface continuity that could be formed, witheach warp and weft yarn essentially standing alone, except where they in-tersect. The weave was not tight enough, and the yarns were not closeenough, for them to form a continuous surface.

Similarly, the World Customs Organization’s (WCO) Harmonized SystemCommittee (HSC) classified substantially similar merchandise in subhead-ing 3926.90, HTSUSA. See Annex L/5 to Doc. NC0590B2 (HSC/29/May


2002). The HSC did not consider the geotextile material, with its large openweave, to be a ‘‘sheet.’’ See Annex G/11 to Doc. NC0510E2 (HSC/28/Nov.2001).

The instant extruded polyethylene mesh, like the geotextile material ofHQ 965889 and that classified by the HSC, has open spaces and cannot beconsidered to have a broad surface. Thus, the mesh lacks the continuity nec-essary to be classified as a sheet of plastics of heading 3920, HTSUSA. Ac-cordingly, the extruded polyethylene mesh is classified in subheading3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’

HOLDING:NY C84049, dated February 13, 1998, is hereby revoked.The extruded polyethylene mesh is classified in subheading 3926.90.9880,

HTSUSA, which provides for ‘‘Other articles of plastics and articles of othermaterials of headings 3901 to 3914: Other: Other, Other.’’ The general col-umn one rate of duty is 5.3% ad valorem.

Due to the changeable nature of the statistical annotation (the ninth andtenth digits of the classification) and the restraint (quota/visa) categories,you should contact the local CBP office prior to importation of this merchan-dise to determine the current status of any import restraints or require-ments.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60days after its publication in the CUSTOMS BULLETIN.



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[ATTACHMENT B]


HQ 967347January 25, 2005


MR. STEPHEN L. FODORKUEHNE & NAGEL, INC.235 Southfield ParkwayForest Park, GA 30297

RE: Revocation of New York Ruling Letter (NY) G87431, dated March 20,2001; Classification of extruded polyethylene plastic.

DEAR MR. FODOR:This letter is to inform you that the Bureau of Customs and Border Pro-

tection (CBP) has reconsidered New York Ruling Letter (NY) G87431, issuedto you on behalf of your client Intermas Nets S.A., on March 20, 2001, con-cerning the classification under the Harmonized Tariff Schedule of the


United States Annotated (HTSUSA) of extruded polyethylene plastic. Thearticle was classified in subheading 3920.10.0000, HTSUSA, which providesfor ‘‘other plates, sheets, film, foil and strip, of plastics, noncellular and notreinforced, laminated, supported or similarly combined with other materi-als: of polymers of ethylene.’’ We have reviewed that ruling and found it tobe in error. Therefore, this ruling revokes NY G87431.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY G87431 waspublished on December 1, 2004, in Vol. 38, Number 49, of the CUSTOMSBULLETIN. CBP received no comments.

FACTS:The article identified as garden netting is sheeting composed of extruded

polyethylene plastic.

ISSUE:Whether the extruded polyethylene plastic is classified in heading 3926,



Rules of Interpretation (GRI). GRI 1 provides that the classification of goodsshall be determined according to the terms of the headings of the tariffschedule and any relative Section or Chapter Notes. In the event that thegoods cannot be classified solely on the basis of GRI 1, and if the headingsand legal notes do not otherwise require, the remaining GRI may then beapplied. The Explanatory Notes (EN) to the Harmonized Commodity De-scription and Coding System, which represent the official interpretation ofthe tariff at the international level, facilitate classification under theHTSUSA by offering guidance in understanding the scope of the headingsand GRI.





Webster’s Third New International Dictionary (Webster’s) (1986) defines‘‘sheeting,’’ in relevant part, as ‘‘1: material in the form of sheets or suitable


for forming into sheets: as . . . b: material (as a plastic) in the form of a con-tinuous film. . . .’’ Id. at 2092. Webster’s defines ‘‘sheet,’’ in relevant part, as‘‘3 a: a broad stretch or surface of something that is usu. thin in comparisonto its length and breadth. . . .’’ Id. at 2091. The Oxford English Dictionary(2d Ed. 1989) defines ‘‘sheet’’ as ‘‘9. a. A relatively thin piece of considerablebreadth of a malleable, ductile, or pliable substance.’’ Id. at 224.





Similarly, the World Customs Organization’s (WCO) Harmonized SystemCommittee (HSC) classified substantially similar merchandise in subhead-ing 3926.90, HTSUSA. See Annex L/5 to Doc. NC0590B2 (HSC/29/May2002). The HSC did not consider the geotextile material, with its large openweave, to be a ‘‘sheet.’’ See Annex G/11 to Doc. NC0510E2 (HSC/28/Nov.2001).

The instant extruded polyethylene plastic, like the geotextile material ofHQ 965889 and that classified by the HSC, has open spaces and cannot beconsidered to have a broad surface. Thus, the mesh lacks the continuity nec-essary to be classified as a sheet of plastics of heading 3920, HTSUSA. Ac-cordingly, the extruded polyethylene plastic is classified in subheading3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’

HOLDING:NY G87431, dated March 20, 2001, is hereby revoked.The extruded polyethylene plastic is classified in subheading

3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’The general column one rate of duty is 5.3% ad valorem.






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[ATTACHMENT C]


HQ 967348January 25, 2005


MR. JOHN MATTSONNORTH STAR WORLD TRADE SERVICES, INC.980 Lone Oak Road, Suite 160Eagan, MN 55121

RE: Modification of New York Ruling Letter (NY) H88635, dated February21, 2002; Classification of extruded polyethylene mesh.

DEAR MR. MATTSON:This letter is to inform you that the Bureau of Customs and Border Pro-

tection (CBP) has reconsidered New York Ruling Letter (NY) H88635, issuedto you on behalf of your client Treessentials Company, on February 21, 2002,concerning the classification under the Harmonized Tariff Schedule of theUnited States Annotated (HTSUSA) of extruded polyethylene mesh1. Thearticle was classified in subheading 3920.10.0000, HTSUSA, which providesfor ‘‘other plates, sheets, film, foil and strip, of plastics, noncellular and notreinforced, laminated, supported or similarly combined with other materi-als: of polymers of ethylene.’’ We have reviewed that ruling and found it tobe in error as it pertains to the classification of the extruded polyethylenemesh. Therefore, this ruling modifies NY H88635 as it pertains to the ex-truded polyethylene mesh.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed modification of NY H88653was published on December 1, 2004, in Vol. 38, Number 49, of the CUS-TOMS BULLETIN. CBP received no comments.

1 We note you also requested classification of a second article identified as 100% polyeth-ylene open-work warp knit fabric, however this modifcation pertains only to the extrudedpolyethylene mesh.


FACTS:The article, identified by you as ‘‘Black Extruded Netting’’, is an extruded

polyethylene mesh. This article measures 14 feet in width and will be im-ported in 1000 foot lengths. It will weigh 2 to 5 pounds per 1000 square feet.It will be used in the agricultural industry to protect grape crops from dam-age by birds.

ISSUE:Whether the extruded polyethylene mesh is classified in heading 3926,



Rules of Interpretation (GRI). GRI 1 provides that the classification of goodsshall be determined according to the terms of the headings of the tariffschedule and any relative Section or Chapter Notes. In the event that thegoods cannot be classified solely on the basis of GRI 1, and if the headingsand legal notes do not otherwise require, the remaining GRI may then beapplied. The Explanatory Notes (EN) to the Harmonized Commodity De-scription and Coding System, which represent the official interpretation ofthe tariff at the international level, facilitate classification under theHTSUSA by offering guidance in understanding the scope of the headingsand GRI.











Similarly, the World Customs Organization’s (WCO) Harmonized SystemCommittee (HSC) classified substantially similar merchandise in subhead-ing 3926.90, HTSUSA. See Annex L/5 to Doc. NC0590B2 (HSC/29/May2002). The HSC did not consider the geotextile material, with its large openweave, to be a ‘‘sheet.’’ See Annex G/11 to Doc. NC0510E2 (HSC/28/Nov.2001).

The instant extruded polyethylene mesh, like the geotextile material ofHQ 965889 and that classified by the HSC, has open spaces and cannot beconsidered to have a broad surface. Thus, the mesh lacks the continuity nec-essary to be classified as a sheet of plastics of heading 3920, HTSUSA. Ac-cordingly, the extruded polyethylene mesh is classified in subheading3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’

HOLDING:NY H88635, dated February 21, 2002, is here by modified to reflect the

proper classification of the ‘‘Black Extruded Netting’’.The extruded polyethylene mesh is classified in subheading 3926.90.9880,

HTSUSA, which provides for ‘‘Other articles of plastics and articles of othermaterials of headings 3901 to 3914: Other: Other, Other.’’ The general col-umn one rate of duty is 5.3% ad valorem.






[ATTACHMENT D]


HQ 967349January 25, 2005


MR. CHRIS MURRAYAMERICAN CARGO EXPRESS, INC.Newark International Airport/Seaport435 Division StreetElizabeth, NJ 07201

RE: Revocation of New York Ruling Letter (NY) D80028, dated July 28,1998; Classification of extruded polypropylene mesh.

DEAR MR. MURRAY:This letter is to inform you that the Bureau of Customs and Border Pro-

tection (CBP) has reconsidered New York Ruling Letter (NY) D80028, issuedto you on behalf of your client, Power Aisle, Inc., on July 28, 1998, concern-ing the classification under the Harmonized Tariff Schedule of the UnitedStates Annotated (HTSUSA) of extruded polypropylene mesh. The articlewas classified in subheading 3920.20.0000, HTSUSA, which provides for‘‘other plates, sheets, film, foil and strip, of plastics, noncellular and not re-inforced, laminated, supported or similarly combined with other materials:of polymers of polypropylene.’’ We have reviewed that ruling and found it tobe in error. Therefore, this ruling revokes NY D80028.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY D80028 waspublished on December 1, 2004, in Vol. 38, Number 49, of the CUSTOMSBULLETIN. CBP received no comments.

FACTS:The product consists of extruded polypropylene mesh made in a continu-

ous extrusion process and not from pre-existing filaments. This mesh can beplaced over trees and plants to protect vegetables and fruits from birds. Themesh will be sold in a package and measure 7 feet by 20 feet.

ISSUE:Whether the extruded polypropylene mesh is classified in heading 3926,



Rules of Interpretation (GRI). GRI 1 provides that the classification of goodsshall be determined according to the terms of the headings of the tariffschedule and any relative Section or Chapter Notes. In the event that thegoods cannot be classified solely on the basis of GRI 1, and if the headingsand legal notes do not otherwise require, the remaining GRI may then beapplied. The Explanatory Notes (EN) to the Harmonized Commodity De-


scription and Coding System, which represent the official interpretation ofthe tariff at the international level, facilitate classification under theHTSUSA by offering guidance in understanding the scope of the headingsand GRI.










Similarly, the World Customs Organization’s (WCO) Harmonized SystemCommittee (HSC) classified substantially similar merchandise in subhead-


ing 3926.90, HTSUSA. See Annex L/5 to Doc. NC0590B2 (HSC/29/May2002). The HSC did not consider the geotextile material, with its large openweave, to be a ‘‘sheet.’’ See Annex G/11 to Doc. NC0510E2 (HSC/28/Nov.2001).

The instant extruded polypropylene mesh like the geotextile material ofHQ 965889 and that classified by the HSC, has open spaces and cannot beconsidered to have a broad surface. Thus, the mesh lacks the continuity nec-essary to be classified as a sheet of plastics of heading 3920, HTSUSA. Ac-cordingly, the extruded polypropylene mesh is classified in subheading3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’

HOLDING:NY D80028, dated July 28, 1998, is hereby revoked.The extruded polypropylene mesh is classified in subheading

3926.90.9880, HTSUSA, which provides for ‘‘Other articles of plastics andarticles of other materials of headings 3901 to 3914: Other: Other, Other.’’The general column one rate of duty is 5.3% ad valorem.





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REVOCATION OF RULING LETTER AND REVOCATION OFTREATMENT RELATING TO TARIFF CLASSIFICATION OFA RADIO ALARM CLOCK INCORPORATING A CD PLAYER

AGENCY: U.S. Customs and Border Protection (CBP), Departmentof Homeland Security.

ACTION: Notice of proposed revocation of ruling letter, and revoca-tion of treatment relating to tariff classification of a radio alarmclock incorporating a CD player.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930, (19U.S.C. 1625(c)), as amended by section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that CBP is revoking a ruling letter pertaining tothe tariff classification of a radio alarm clock incorporating a CDplayer under the Harmonized Tariff Schedule of the United States(‘‘HTSUS’’). CBP is also revoking any treatment previously accordedby CBP to substantially identical transactions. Notice of the pro-


posed action was published in the Customs Bulletin, Volume 38,Number 51, on December 15, 2004. No comments were received inresponse to the notice.

EFFECTIVE DATE: Merchandise entered or withdrawn fromwarehouse for consumption on or after April 17, 2005.

FOR FURTHER INFORMATION CONTACT: Michelle Garcia,General Classification Branch, (202) 572–8745.


Background

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057), (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’ Theseconcepts are premised on the idea that in order to maximize volun-tary compliance with customs laws and regulations, the trade com-munity needs to be clearly and completely informed of its legal obli-gations. Accordingly, the law imposes a greater obligation on CBP toprovide the public with improved information concerning the tradecommunity’s responsibilities and rights under the customs and re-lated laws. In addition, both the trade and CBP share responsibilityin carrying out import requirements. For example, under section 484of the Tariff Act of 1930, as amended (19 U.S.C. 1484), the importerof record is responsible for using reasonable care to enter, classifyand value imported merchandise, and provide any other informationnecessary to enable CBP to properly assess duties, collect accuratestatistics and determine whether any other applicable legal require-ment is met.

Pursuant to section 625(c)(1), Tariff Act of 1930, as amended (19U.S.C. 1625(c)(1)), a notice was published in the Customs Bulletin,Volume 38, Number 51, on December 15, 2004, proposing to revokeNY J83164, which involved the classification of a radio alarm clockincorporating a CD player. No comments were received in responseto the notice.

As stated in the proposed notice, this revocation will cover any rul-ings on the subject merchandise which may exist but which have notbeen specifically identified. Any party who has received an interpre-tative ruling or decision (i.e., ruling letter, internal advice memoran-dum or decision or protest review decision) on the merchandise sub-ject to this notice should have advised CBP during the commentperiod.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930, asamended (19 U.S.C. 1625(c)(2)), CBP is revoking any treatment pre-


viously accorded by CBP to substantially identical transactions. Thistreatment may, among other reasons, be the result of the importer’sreliance on a ruling issued to a third party, CBP personnel applyinga ruling of a third party to importations of the same or similar mer-chandise, or the importer’s or CBP’s previous interpretation of theHarmonized Tariff Schedule of the United States. Any person in-volved in substantially identical transactions should have advisedCBP during the comment period. An importer’s failure to advise CBPof substantially identical transactions or of a specific ruling not iden-tified in this notice, may raise issues of reasonable care on the partof the importer or its agents for importations of merchandise subse-quent to the effective date of the final notice of this action.

Pursuant to 19 U.S.C. 1625(c)(1), CBP is revoking NY J83164, andany other ruling not specifically identified in order to reflect theproper classification of the merchandise pursuant to the analysis setforth in HQ 967274, attached. Additionally, pursuant to 19 U.S.C.1625(c)(2), CBP is revoking any treatment previously accorded byCBP to substantially identical transactions. In accordance with 19U.S.C. 1625(c), this ruling will become effective 60 days after publi-cation in the Customs Bulletin.




Attachment

r


HQ 967274January 28, 2005

CLA–2 RR:CR:GC 967274 MGCATEGORY: ClassificationTARIFF NO.: 8527.31.6040

MS. AASHA DESLOGE-KURRBEST BUY7601 Penn Avenue S, Bldg. D4Richfield, MN 55423

RE: NY J83164 revoked; CD alarm clock radios

DEAR MS. DESLOGE-KURR:This is in response to an internal request for reconsideration of NY

J83164, dated April 10, 2003, a ruling issued to you, on the classification oftwo models of radio alarm clock, each incorporating a compact disc (CD)player, under the Harmonized Tariff Schedule of the United States


(HTSUS). NY J83164 classified the merchandise under subheading8527.39.00, HTSUS. However, in researching a related issue, Customs andBorder Protection (CBP) determined that NY J83164 should be revoked.This ruling letter sets forth the correct classification of the subject merchan-dise.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J82455 waspublished on November 17, 2004, in the Customs Bulletin, Volume 38, Num-ber 51. No comments were received in response to that notice.

FACTS:NY J83164 described the merchandise as follows:

The two items in question are denoted as the CD Clock Radio, modelMCR220BK and the CD AM/FM stereo Clock Radio, model CR 4955.

Model MCR220BK is an AM/FM radiobroadcast unit with a clock, a CDplayer, without recording capability, a dual alarm and a LCD display.The clock radio is not capable of operating without an external source ofpower.

Model CR4955 is an AM/FM radiobroadcast unit with a clock, a CDplayer, without recording capability, a sleep timer, an LED display, dualalarm, 20 memory programs, and an optional wake feature of either theradio, a buzzer or the CD player. It employs a 9-volt battery as a backuponly for the clock. This clock radio cannot operate without an externalsource of power.

ISSUE:Whether the terms of subheading 8527.31, HTSUS, provide for a radio in-

corporating both a clock and CD player, such as the merchandise at issue, orwhether such a device must be classified under subheading 8527.39.00,HTSUS.

LAW AND ANALYSIS:Merchandise is classifiable under the HTSUS in accordance with the Gen-

eral Rules of Interpretation (GRIs). GRI 1 provides that classification shallbe determined according to the terms of the headings and any relative sec-tion or chapter notes and, provided such headings or notes do not otherwiserequire, according to the remaining GRIs.

GRI 6 states that the classification of goods in the subheadings of a head-ing shall be determined according to the terms of those subheadings and anyrelated subheading notes and, mutatis mutandis, to the above rules, on theunderstanding that only subheadings at the same level are comparable. Forthe purposes of this rule, the relative section, chapter and subchapter notesalso apply, unless the context otherwise requires.

The HTSUS provisions under consideration are as follows:

8527 Reception apparatus for radiotelephony, radiotelegraphy orradiobroadcasting, whether or not combined, in the samehousing, with a sound recording or reproducing apparatusor a clock:


Other radiobroadcast receivers, including apparatuscapable of receiving also radiotelephony or radiotele-graphy:

8527.31 Combined with sound recording or reproducing appa-ratus:

Other:

8527.31.60 Other

* * * * * *

8527.39.00 Other

Heading 8527, HTSUS, applies to reception apparatus for radiobroadcast-ing, whether or not combined with sound recording or reproducing appara-tus or a clock and, therefore, applies to the instant merchandise, a radioalarm clock incorporating a CD player. Because two competing subheadingswithin heading 8527, HTSUS, are at issue, GRI 3(a) is applied through GRI6. GRI 3(a) states that when, by application of rule 2(b) or for any other rea-son, goods are prima facie classifiable under two or more subheadings, thesubheading which provides the most specific description shall be preferredto a subheading providing a more general description. In Orlando FoodCorp. v. US, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (quoting, United States v.Siemens Am., Inc., 653 F.2d 471, 478 (CCPA 1981)), the court addressed GRI3(a), holding that under the rule of relative specificity, the subheading withrequirements more difficult to satisfy will prevail and be applied over amore general subheading because it describes the article with the greatestdegree of accuracy and certainty. Additionally, with regard to classificationwhen a ‘‘basket’’ provision is being considered, classification therein is ap-propriate ‘‘only when there is no tariff category that covers the merchandisemore specifically.’’ See Apex Universal, Inc. v. United States, 22 CIT 465(1998).

CBP notes that subheading 8527.31, HTSUS, is a more specific provisionthan subheading 8527.39, HTSUS, providing as it does for merchandise‘‘[c]ombined with sound recording or reproducing apparatus,’’ as opposed to‘‘[o]ther.’’ Within subheading 8527.31, HTSUS, CBP has previously classifieda clock radio incorporating a cassette player and telephone, specifically un-der subheading 8527.31.40, HTSUS. See HQ 954412, dated August 18, 1993and NY DD 885222, dated May 12, 1993. Thus, notwithstanding the tele-phone incorporated into that merchandise, a radio combined with both asound reproducing device and a clock was classified within subheading8527.31, HTSUS. These rulings support the conclusion that, because theword ‘‘clock’’ is specifically mentioned in the text to heading 8527, HTSUS, itis not necessary that the word ‘‘clock’’ be specifically mentioned again withinsubheading 8527.31, HTSUS, in order to classify an item incorporating aclock therein.

The merchandise at issue is similar to that classified in HQ 954412 andNY DD 885222, with respect to both being a radio combined with a soundreproducing device, in this case a CD player, and a clock. As a result, sub-heading 8527.31, HTSUS, the more specific provision, shall apply. Withinthat subheading, both models of CD alarm clock radio are classified under8527.31.60, HTSUS.


HOLDING:The AM/FM clock radios incorporating CD players, models MCR220BK

and CR4955, are classified under subheading 8527.31.6040, HarmonizedTariff Schedule of the United States Annotated, as ‘‘Reception apparatus forradiotelephony, radiotelegraphy or radiobroadcasting, whether or not com-bined, in the same housing, with sound recording or reproducing apparatusor a clock: Other radiobroadcast receivers, including apparatus capable ofreceiving also radiotelephony or radiotelegraphy: Combined with sound re-cording or reproducing apparatus: Other.’’ The column one, general rate ofduty is Free.

Duty rates are provided for your convenience and are subject to change.The text of the most recent HTSUS and the accompanying duty rates areprovided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:NY J83164 is REVOKED. In accordance with 19 U.S.C. 1625(c), this rul-

ing will become effective 60 days after its publication in the Customs Bulle-tin.



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REVOCATION OF RULING LETTER AND REVOCATION OFTREATMENT RELATING TO TARIFF CLASSIFICATION OF

TENNIS BALLS


ACTION: Notice of revocation of ruling letter and revocation oftreatment relating to tariff classification of tennis balls.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930, (19U.S.C. 1625(c)), as amended by section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that CBP is revoking a ruling letter pertaining tothe tariff classification of tennis balls under the Harmonized TariffSchedule of the United States (‘‘HTSUS’’). CBP is also revoking anytreatment previously accorded by CBP to substantially identicaltransactions. Notice of the proposed action was published in the Cus-toms Bulletin, Volume 38, Number 47, on November 17, 2004. Nocomments were received in response to the notice.



FOR FURTHER INFORMATION CONTACT Michelle Garcia,General Classification Branch, (202) 572–8745.


Background

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057), (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’ Theseconcepts are premised on the idea that in order to maximize volun-tary compliance with customs laws and regulations, the trade com-munity needs to be clearly and completely informed of its legal obli-gations. Accordingly, the law imposes a greater obligation on CBP toprovide the public with improved information concerning the tradecommunity’s responsibilities and rights under the customs and re-lated laws. In addition, both the trade and CBP share responsibilityin carrying out import requirements. For example, under section 484of the Tariff Act of 1930, as amended (19 U.S.C. 1484), the importerof record is responsible for using reasonable care to enter, classifyand value imported merchandise, and provide any other informationnecessary to enable CBP to properly assess duties, collect accuratestatistics and determine whether any other applicable legal require-ment is met.

Pursuant to section 625(c)(1), Tariff Act of 1930, as amended (19U.S.C. 1625(c)(1)), a notice was published in the Customs Bulletin,Volume 38, Number 47, on November 17, 2004, proposing to revokeNY J82455, which involved the classification of tennis balls. No com-ments were received in response to the notice.

As stated in the proposed notice, this revocation will cover any rul-ings on the subject merchandise which may exist but which have notbeen specifically identified. Any party who has received an intrepre-tive ruling or decision (i.e., ruling letter, internal advice memoran-dum or decision or protest review decision) on the merchandise sub-ject to this notice should have advised CBP during the commentperiod.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930, asamended (19 U.S.C. 1625(c)(2)), CBP is revoking any treatment pre-viously accorded by CBP to substantially identical transactions. Thistreatment may, among other reasons, be the result of the importer’sreliance on a ruling issued to a third party, CBP personnel applyinga ruling of a third party to importations of the same or similar mer-chandise, or the importer’s or CBP’s previous interpretation of theHarmonized Tariff Schedule of the United States. Any person in-volved in substantially identical transactions should have advised


CBP during the comment period. An importer’s failure to advise CBPof substantially identical transactions or of a specific ruling not iden-tified in this notice, may raise issues of reasonable care on the partof the importer or its agents for importations of merchandise subse-quent to the effective date of the final notice of this action.

Pursuant to 19 U.S.C. 1625(c)(1), CBP is revoking NY J82455, andany other ruling not specifically identified in order to reflect theproper classification of the merchandise pursuant to the analysis setforth in HQ 967293, attached. Additionally, pursuant to 19 U.S.C.1625(c)(2), CBP is revoking any treatment previously accorded byCBP to substantially identical transactions. In accordance with 19U.S.C. 1625(c), this ruling will become effective 60 days after publi-cation in the Customs Bulletin.




Attachment

r


HQ 967293January 28, 2005


MS. CARI GREGODOLLAR TREE STORES, INC.500 Volvo ParkwayChesapeake, VA 23320

RE: Revocation of J82455; tennis balls

DEAR MS. GREGO:This is in response to an internal request for the reconsideration of NY

J82455, dated April 21, 2003, on three multicolored balls under the Harmo-nized Tariff Schedule of the United States (HTSUS). This ruling letter setsforth the correct classification of the subject merchandise.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J82455 waspublished on November 17, 2004, in the Customs Bulletin, Volume 38, Num-ber 47. No comments were received in response to that notice.


FACTS:In describing the subject merchandise, NY J82455 provided as follows:

The submitted sample is identified as item number SKU 132044, pettoys. The sample consists of three multicolored tennis balls that aredecorated with paw prints. In a telephone conversation with this officeyou stated that the pet toy tennis balls are made of natural rubber.

ISSUE:Whether the three multicolored balls are dog toys under heading 4016,

HTSUS, or tennis balls under heading 9506, HTSUS?



Additional Rule of Interpretation (ARI) 1(a) states that in the absence ofspecial language or context which otherwise requires, a tariff classificationcontrolled by use (other than actual use) is to be determined in accordancewith the use in the United States at, or immediately prior to, the date of im-portation, of goods of that class or kind to which the imported goods belong,and the controlling use is the principal use.

The Explanatory Notes (EN) to the Harmonized Commodity Descriptionand Coding System represent the official interpretation of the tariff at theinternational level. The ENs, although neither dispositive or legally binding,facilitate classification by providing a commentary on the scope of eachheading of the HTSUS, and are generally indicative of the proper interpre-tation of these headings. See T.D. 89–80.


4016 Other articles of vulcanized rubber other than hard rubber:

Other:

4016.99 Other:

4016.99.20 Toys for pets

* * * * * *

9506 Articles and equipment for general physical exercise, gym-nastics, athletics, other sports (including table-tennis) oroutdoor games, not specified or included elsewhere in thischapter; swimming pools and wading pools; parts and ac-cessories thereof:

Balls, other than golf balls and table-tennis balls:

9506.61.00 Lawn-tennis balls

In NY J82455, CBP classified three multicolored balls with paw prints onthem under subheading 4016.99.20, HTSUS, which provides for ‘‘Other ar-ticles of vulcanized rubber, other than hard rubber: Other: Other: Toys forpets.’’ In that ruling, CBP held that the merchandise, because they are in-tended for use by pets, cannot be considered equipment for use by human


beings in physical activities designed to train, develop or condition the bodyand improve physical fitness. As a result, they were not classified underheading 9506, HTSUS.

GRI 3(a) states, in pertinent part, that when goods are prima facie classi-fiable under two or more headings, the heading which provides the mostspecific description shall be preferred to headings providing a more generaldescription. We note initially that heading 4016, HTSUS, is a basket provi-sion and applies only if the merchandise is not more specifically describedelsewhere. Therefore, inasmuch as the merchandise at issue is an article ofrubber that is covered by the heading text of 4016, HTSUS, we must firstexamine any other provision, which, if applicable, would take precedence forpurposes of classification.

Heading 9506, HTSUS, applies to articles and equipment for generalphysical exercise, such as for sports and outdoor games. EN 95.06 states inpertinent part:

This heading covers:

. . .

(B) Requisites for other sports and outdoor games (other thantoys presented in sets, or separately, of heading 95.03), e.g.:

. . .

(6) Balls, other than golf balls and table-tennis balls, such astennis balls . . . [Emphasis added].

Heading 9506, HTSUS, is a principal use provision and, therefore, subjectto Additional U.S. Rule of Interpretation 1(a), HTSUS. In Primal Lite v.United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (CAFC1999), the Court of International Trade addressed ARI 1(a), providing thatthe purpose of principal use provisions in the HTSUS is to classify particu-lar merchandise according to the ordinary use of such merchandise, eventhough particular imported goods may be put to some atypical use. There-fore, classification under the heading is controlled by the principal use in theUnited States of goods of that class or kind to which the imported goods be-long at or immediately prior to the date of the importation. Lenox v. Coll. v.United States, 20 CIT, Slip Op. 96–30 (February 2, 1996). It is equally im-portant to note that we are not examining the actual use of the instant mer-chandise in making our determination, but rather examining whether thepertinent characteristics of the instant merchandise are substantially simi-lar to those of the typical merchandise falling within the class.

To be classified under heading 9506, HTSUS, the ball at issue would haveto be part of the class or kind of ball that is considered a ‘‘tennis ball.’’ In de-termining the class or kind of goods to which an article belongs, CBP mayconsider a variety of factors including: (1) the general physical characteris-tics of the merchandise; (2) the expectation of the ultimate purchaser; (3) thechannels of trade in which the merchandise moves; (4) the environment ofsale (accompanying accessories, manner of advertisement and display); and(5) the usage of the merchandise. United States v. Carborundum Company,63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979.

Regarding the instant merchandise, the balls are visually identical to rec-ognized tennis balls in their shape, size, and the felt material used to coverthem. Other than the fact that the balls have paw prints on the surface ofthe felt material, there is no obvious indication that they will be marketed


for use by pets and they are, in fact, dissimilar to any type of recognized pettoy. In addition, regardless of the fact that the balls may ultimately be usedas pet toys, our examination of the available information leads us to con-clude that, upon importation, they are of the class or kind of ball that is con-sidered a tennis ball. We additionally note that in NY J82455, CBP de-scribed the merchandise as ‘‘tennis balls,’’ but did not classify them underheading 9506, HTSUS, only because they were intended for use by animals.As previously stated, their ultimate use by pets is not determinative for pur-poses of classification.

Finally, CBP has previously classified substantially similar merchandiseunder heading 9506, HTSUS. In NY J89264, dated September 25, 2003,CBP determined that the Fetch ToteTM was a ‘‘tennis ball’’ and thereforeshould be classified under subheading 9506.61.00, HTSUS. The FetchToteTM consisted of two components, a ball and accompanying belt pouch.The ball was non-pressurized and was identical to a tennis ball due to itssize, shape; and the fact that it was covered in blue and white felt of thesame configuration as recognized tennis balls; the ball also had the word‘‘Chuckit!’’ printed on it. In addition, the ball was produced by a tennis ballmanufacturer. Because that ball was seemingly identical to recognized ten-nis balls in both appearance and construction, and therefore dissimilar toany type of pet toy, CBP determined that classification was proper underheading 9506, HTSUS. CBP notes that the merchandise at issue is seem-ingly identical to the Fetch ToteTM.

In view of the foregoing, the merchandise at issue is classified under themore specific heading, 9506, HTSUS, and more specifically under subhead-ing 9506.61.00, HTSUS, as a tennis ball.

HOLDING:The ball is classified under subheading 9506.61.0000, Harmonized Tariff

Schedule of the United States Annotated, as, ‘‘Articles and equipment forgeneral physical exercise, gymnastics, athletics, other sports (includingtable-tennis) or outdoor games, not specified or included elsewhere in thischapter; swimming pools and wading pools; parts and accessories thereof:Balls, other than golf balls and table-tennis balls: Lawn-tennis balls.’’ Thegeneral, column one rate of duty is Free.


EFFECT ON OTHER RULINGS:NY J82455, dated April 21, 2003 is REVOKED. In accordance with 19

U.S.C. 1625(c), this ruling will become effective 60 days after its publicationin the Customs Bulletin.




MODIFICATION OF TWO RULING LETTERS ANDREVOCATION OF TREATMENT RELATING TO TARIFF

CLASSIFICATION OF PREPARED SLIDES


ACTION: Notice of modification of two ruling letters, and revoca-tion of treatment relating to tariff classification of prepared slides.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930, (19U.S.C. 1625(c)), as amended by section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that CBP is modifying two ruling letters pertain-ing to the tariff classification of prepared slides under the Harmo-nized Tariff Schedule of the United States (‘‘HTSUS’’). CBP also isrevoking any treatment previously accorded by CBP to substantiallyidentical transactions. Notice of the proposed action was publishedin the Customs Bulletin, Volume 38, Number 47, on November 17,2004. No comments were received in response to the notice.


FOR FURTHER INFORMATION CONTACT: Michelle Garcia,General Classification Branch, (202) 572–8745.


Background

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057), (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’ Theseconcepts are premised on the idea that in order to maximize volun-tary compliance with customs laws and regulations, the trade com-munity needs to be clearly and completely informed of its legal obli-gations. Accordingly, the law imposes a greater obligation on CBP toprovide the public with improved information concerning the tradecommunity’s responsibilities and rights under the customs and re-lated laws. In addition, both the trade and CBP share responsibilityin carrying out import requirements. For example, under section 484of the Tariff Act of 1930, as amended (19 U.S.C. 1484), the importerof record is responsible for using reasonable care to enter, classifyand value imported merchandise, and provide any other information


necessary to enable CBP to properly assess duties, collect accuratestatistics and determine whether any other applicable legal require-ment is met.

Pursuant to section 625(c)(1), Tariff Act of 1930, as amended (19U.S.C. 1625(c)(1)), a notice was published in the Customs Bulletin,Volume 38, Number 47, on November 17, 2004, proposing to modifyNY J81103 and NY D87557, two rulings pertaining to the classifica-tion of prepared slides. No comments were received in response tothe notice.

As stated in the proposed notice, this modification will cover anyrulings on the subject merchandise which may exist but which havenot been specifically identified. Any party who has received an inter-pretive ruling or decision (i.e., ruling letter, internal advise memo-randum or decision or protest review decision) on the merchandisesubject to this notice should have advised CBP during the commentperiod.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930, asamended (19 U.S.C. 1625(c)(2)), CBP is revoking any treatment pre-viously accorded by CBP to substantially identical transactions. Thistreatment may, among other reasons, be the result of the importer’sreliance on a ruling issued to a third party, CBP personnel applyinga ruling of a third party to importations of the same or similar mer-chandise, or the importer’s or CBP’s previous interpretation of theHarmonized Tariff Schedule of the United States. Any person in-volved in substantially identical transactions should have advisedCBP during the comment period. An importer’s failure to advise CBPof substantially identical transactions or of a specific ruling not iden-tified in this notice, may raise issues of reasonable care on the partof the importer or its agents for importations of merchandise subse-quent to the effective date of the final notice of this action.

Pursuant to 19 U.S.C. 1625(c)(1), CBP is modifying NY J81103and NY D87557, and any other ruling not specifically identified inorder to reflect the proper classification of the merchandise pursuantto the analysis set forth in HQ 967296 (Attachment A) and HQ967297(Attachment B). Additionally, pursuant to 19 U.S.C.1625(c)(2), CBP is revoking any treatment previously accorded byCBP to substantially identical transactions. In accordance with 19U.S.C. 1625(c), these rulings will become effective 60 days after pub-lication in the Customs Bulletin.




Attachments


[ATTACHMENT A]


HQ 967296January 28, 2005


MR. DENNIS AHERNBOWEN HILL, LTD.2032 Nottingham WayHamilton NJ, 98619

RE: Prepared Slides; NY J81103, modified

DEAR MR. AHERN:This is in response to an internal request for reconsideration of NY

J81103, dated February 28, 2003, on the classification of prepared slides un-der the Harmonized Tariff Schedule of the United States (HTSUS). NYJ81103 classified prepared slides under subheadings 5402.41.90, HTSUS,and 9705.00.00, HTSUS. However, in researching a related issue, Customsand Border Protection (CBP) determined that NY J81103 should be modifiedonly with respect to its classification of prepared slides. This ruling lettersets forth the correct classification of the subject merchandise.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed modification of NY J81103and NY D87557, was published on November 17, 2004, in the Customs Bul-letin, Volume 38, Number 47. No comments were received in response tothat notice.

FACTS:The merchandise at issue are two prepared slides for microscopic study.

More specifically, one of the slides contains a textile sample and the remain-ing slide contains a specimen of a grasshopper; both are included as part ofthe Die Cast Microscope/Telescope Set. Although termed a ‘‘set’’ by the im-porter, NY J81103 determined that the merchandise did not meet the crite-ria to qualify as a GRI 3(b) set. As such, all of the individual articles, includ-ing the prepared slides, were separately classified.

The one prepared slide with a textile sample was classified under sub-heading 5402.41.90, HTSUS as ‘‘Synthetic filament yarn (other than sewingthread), not put up for retail sale, including synthetic monofilament of lessthan 67 decitex: Other yarn, single, untwisted or with a twist not exceeding50 turns/m: Of nylon or other polyamides: Other.’’

The one prepared slide containing a specimen of a grasshopper was classi-fied under subheading 9705.00.00, HTSUS, as ‘‘Collections and collectors’pieces of zoological, botanical, mineralogical, anatomical, historical, archeo-logical, paleontological, ethnographic or numismatic interest.’’

ISSUE:Whether the prepared slides for microscopic study are classified as syn-

thetic filament yarn under subheading 5402.41.90, HTSUS, or as collections


and collectors’ pieces of zoological interest under subheading 9705.00.00,HTSUS, or as instruments, apparatus and models, designed for educationalpurposes, under subheading 9023.00.00, HTSUS?



The Explanatory Notes (EN) to the Harmonized Commodity Descriptionand Coding System represent the official interpretation of the tariff at theinternational level. The ENs, although neither dispositive nor legally bind-ing, facilitate classification by providing a commentary on the scope of eachheading of the HTSUS, and are generally indicative of the proper interpre-tation of these headings. See T.D. 89–80.


5402 Synthetic filament yarn (other than sewing thread), not putup for retail sale, including synthetic monofilament of lessthan 67 decitex:

Other yarn, single, untwisted or with a twist not ex-ceeding 50 turns/m:

5402.41 Of nylon or other polyamides:

5402.41.90 Other

* * * * * *

9023.00.00 Instruments, apparatus and models, designed for demon-strational purposes (for example, in education or exhibi-tions), unsuitable for other uses, and parts and accessoriesthereof

* * * * * *

9705.00.00 Collections and collectors’ pieces of zoological, botanical,mineralogical, anatomical, historical, archeological, paleon-tological, ethnographic or numismatic interest

Subheading 9705.00.00, HTSUS, applies to collections and collectors’pieces of zoological, botanical, mineralogical, anatomical, historical, archeo-logical, paleontological, ethnographic or numismatic interest. In addition,EN 97.05 states, in pertinent part, that:

These articles are very often of little intrinsic value but derive their in-terest from their rarity, their grouping or their presentation. The head-ing includes:

(A) Collections and collectors’ pieces of zoological, botanical,mineralogical or anatomical interest, such as:

(1) Dead animals of any species, preserved dry or in liquid;stuffed animals for collections.

(2) Blown or sucked eggs; insects in boxes, frames, etc. (otherthan mounted articles constituting imitation jewelry or trin-


kets); empty shells, other than those of a kind suitable forindustrial use.

(3) Seeds or plants, dried or preserved in liquid; herbariums.(4) Specimens of minerals (not being precious or semi-percious

stones falling in Chapter 71); specimens of petrification.(5) Osteological specimens (skeletons, skulls, bones).(6) Anatomical and pathological specimens

Regarding the prepared slide containing a grasshopper sample and classi-fied under subheading 9705.00.00, HTSUS, there is no information thatwould indicate it constitutes a rare sample that would be of any interest in acollection and to a collector, as required by the heading text. Rather, it ap-pears to contain a microscopic sample of no distinction, on the same type ofslide that is typically included with a microscope. Although we note that EN97.05 (A)(2) refers specifically to insects, we further note that it indicatesthe insects are preserved in whole as opposed to the mere preservation of amicroscopic sample. In addition, CBP notes that prior rulings classifyingitems under subheading 9705.00.00, HTSUS, invariably pertain to rare ex-amples of merchandise, or merchandise that would appropriately be part ofa collection, and therefore important to a collector for purposes of display.See NY J89338, dated October 15, 2003 (reproductions of historically signifi-cant tiles found in famous churches, museums and private villas throughoutItaly), HQ 966030, dated January 28, 2003 (ancient Egyptian figurine re-sembling a miniature sarcophagus with hieroglyphic writing), HQ 962234,dated July 17, 2000 (various collectible automobiles or racing cars), HQ960986, dated February 24, 1999 (rock and roll memorabilia, including goldand platinum albums, collectible clothing, instruments, photos, lobby cards,pictures, toys and autographs, all of which are associated with various en-tertainers), HQ 961279, dated November 5, 1998 (collection of approxi-mately 40 rare automobiles produced from the late 1920’s through the1950’s, which may be shown at exhibitions for rare automobiles, or in muse-ums), HQ 957664, dated March 13, 1996 (various mounted animals,mounted fish and various animal racks and traps), HQ 952687, dated April30, 1993 (mounted game fish preserved by a taxidermist), and HQ 083869,dated June 14, 1989 (glass display case containing butterflies of varioustypes, sizes and colors; glass display case containing South American spi-ders). Unlike the products in these rulings, the merchandise at issue cannotbe displayed in such a fashion. In view of the foregoing, we find that the pre-pared slide containing a sample of a grasshopper is not described under sub-heading 9705.00.00, HTSUS.

Heading 5402, HTSUS, provides for synthetic filament yarn. See HQ966892, dated January 26, 2004 (monofilament nylon sutures classified un-der heading 5402, HTSUS), HQ 966676, dated December 1, 2003 (monofila-ment nylon sutures classified under heading 5402, HTSUS), HQ 562298,dated February 21, 2002 (nylon filament yarn for the production of apparelarticles classified under heading 5402, HTSUS). The merchandise at issue isa slide for microscopic study that happens to contain a small sample of syn-thetic filament yarn. Because heading 5402, HTSUS, does not apply toslides for microscopic study, the merchandise at issue, pursuant to GRI 1, isprecluded from classification therein.

Subheading 9023.00.00, HTSUS, applies to models designed for demon-strational purposes, for example in educational settings, which are unsuit-able for other uses. In addition, EN 90.23 provides, in pertinent part, that:


This heading covers a wide range of instruments, apparatus and modelsdesigned for demonstrational purposes (e.g., in schools, lecture rooms,exhibitions) and unsuitable for other uses.Subject to this proviso, the heading includes:. . .(5) Show-cases and exhibit panels, etc., displaying samples of raw ma-terials (textile fibres, woods, etc.), or showing the various stages ofmanufacture or processing of a product (for instruction in technicalschools).. . .(7) Prepared slides for microscopic study [Emphasis added].

The prepared slides at issue are exclusively used for demonstrational pur-poses, most often in an educational setting. The slides must be used in con-cert with a microscope to be viewed in any detail, making it readily apparentthat they are incapable of being put to another type of use. As a result, theyare completely and accurately described by the text to subheading9023.00.00, HTSUS. In addition, EN 90.23 specifically names preparedslides for microscopic study. In view of the foregoing, the prepared slides areclassified under subheading 9023.00.00, HTSUS.

HOLDING:Both the prepared slide containing textile materials and the prepared

slide containing a sample of a grasshopper are classified under subheading9023.00.0000, Harmonized Tariff Schedule of the United States Annotated,as ‘‘Instruments, apparatus and models, designed for demonstrational pur-poses (for example, in education or exhibitions), unsuitable for other uses,and parts and accessories thereof.’’ The 2004 general, column one rate ofduty is Free.


EFFECT ON OTHER RULINGS:NY J81103, dated February 28, 2003 is MODIFIED. In accordance with

19 U.S.C. 1625(c), this ruling will become effective 60 days after its publica-tion in the Customs Bulletin.




[ATTACHMENT B]


HQ 967297January 28, 2005


MS. STACEY L. KAPUSHYTASCO SALES, INC.2889 Commerce ParkwayMiramar, FL 33025

RE: Prepared Slides; NY D87557, modified

DEAR MS. KAPUSHY:This is in response to an internal request for reconsideration of NY

D87557, dated February 29, 1999, on the classification of a prepared slideunder the Harmonized Tariff Schedule of the United States (HTSUS). NYD87557 classified a prepared slide under subheading 9705.00.00, HTSUS.However, in researching a related issue, Customs and Border Protection(CBP) determined that NY D87557 should be modified only with respect toits classification of the prepared slide. This ruling letter sets forth the cor-rect classification of the subject merchandise.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed modification of NY J81103and NY D87557, was published on November 17, 2004, in the Customs Bul-letin, Volume 38, Number 47. No comments were received in response tothat notice.

FACTS:The merchandise at issue is one prepared slide for microscopic study.

More specifically, the slide contains an animal specimen and is included aspart of The Kids’ Collection, an assortment of instruments for use by chil-dren. NY D87557 determined that the assortment of merchandise did notmeet the criteria to qualify as a GRI 3(b) set. As such, all of the individualarticles, including the prepared slide, were separately classified. The pre-pared slide was classified under subheading 9705.00.00, HTSUS, as ‘‘Collec-tions and collectors’ pieces of zoological, botanical, mineralogical, anatomi-cal, historical, archeological, paleontological, ethnographic or numismaticinterest.’’

ISSUE:Whether the prepared slide for microscopic study is classified as collec-

tions and collectors’ pieces of zoological interest under subheading9705.00.00, HTSUS, or as instruments, apparatus and models, designed foreducational purposes, under subheading 9023.00.00, HTSUS?


eral Rules of Interpretation (GRIs). GRI 1 provides that classification shall


be determined according to the terms of the headings and any relative sec-tion or chapter notes and, provided such headings or notes do not otherwiserequire, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Descriptionand Coding System represent the official interpretation of the tariff at theinternational level. The ENs, although neither dispositive nor legally bind-ing, facilitate classification by providing a commentary on the scope of eachheading of the HTSUS, and are generally indicative of the proper interpre-tation of these headings. See T.D. 89–80.


9023.00.00 Instruments, apparatus and models, designed for demon-strational purposes (for example, in education or exhibi-tions), unsuitable for other uses, and parts and accessoriesthereof

* * * * * *

9705.00.00 Collections and collectors’ pieces of zoological, botanical,mineralogical, anatomical, historical, archeological, paleon-tological, ethnographic or numismatic interest

Subheading 9705.00.00, HTSUS, applies to collections and collectors’pieces of zoological, botanical, mineralogical, anatomical, historical, archeo-logical, paleontological, ethnographic or numismatic interest. In addition,EN 97.05 states, in pertinent part, that:

These articles are very often of little intrinsic value but derive their in-terest from their rarity, their grouping or their presentation. The head-ing includes:

(A) Collections and collectors’ pieces of zoological, botanical,mineralogical or anatomical interest, such as:(1) Dead animals of any species, preserved dry or in liquid;

stuffed animals for collections.(2) Blown or sucked eggs; insects in boxes, frames, etc. (other

than mounted articles constituting imitation jewelry or trin-kets); empty shells, other than those of a kind suitable forindustrial use.

(3) Seeds or plants, dried or preserved in liquid; herbariums.(4) Specimens of minerals (not being precious or semi-percious

stones falling in Chapter 71); specimens of petrification.(5) Osteological specimens (skeletons, skulls, bones).(6) Anatomical and pathological specimens

Regarding the prepared slide containing an animal specimen and classi-fied under subheading 9705.00.00, HTSUS, there is no information thatwould indicate it constitutes a rare sample that would be of any interest in acollection and to a collector, as required by the heading text. Rather, it ap-pears to contain a microscopic sample of no distinction, on the same type ofslide that is typically included with a microscope. In addition, CBP notesthat prior rulings classifying items in subheading 9705.00.00, HTSUS, in-variably pertain to rare examples of merchandise, or merchandise thatwould appropriately be part of a collection, and therefore important to a col-


lector for purposes of display. See NY J89338, dated October 15, 2003 (repro-ductions of historically significant tiles found in famous churches, museumsand private villas throughout Italy), HQ 966030, dated January 28, 2003(ancient Egyptian figurine resembling a miniature sarcophagus with hiero-glyphic writing), HQ 962234, dated July 17, 2000 (various collectible auto-mobiles or racing cars), HQ 960986, dated February 24, 1999 (rock and rollmemorabilia, including gold and platinum albums, collectible clothing, in-struments, photos, lobby cards, pictures, toys and autographs, all of whichare associated with various entertainers), HQ 961279, dated November 5,1998 (collection of approximately 40 rare automobiles produced from thelate 1920’s through the 1950’s, which may be shown at exhibitions for rareautomobiles, or in museums), HQ 957664, dated March 13, 1996 (variousmounted animals, mounted fish and various animal racks and traps), HQ952687, dated April 30, 1993 (mounted game fish preserved by a taxider-mist), and HQ 083869, dated June 14, 1989 (glass display case containingbutterflies of various types, sizes and colors; glass display case containingSouth American spiders). Unlike the products in these rulings, the merchan-dise at issue cannot be displayed in such a fashion. In view of the foregoing,we find that the prepared slide containing an animal specimen is not de-scribed under subheading 9705.00.00, HTSUS.

Subheading 9023.00.00, HTSUS, applies to models designed for demon-strational purposes, for example in educational settings, which are unsuit-able for other uses. In addition, EN 90.23 provides, in pertinent part, that:

This heading covers a wide range of instruments, apparatus and modelsdesigned for demonstrational purposes (e.g., in schools, lecture rooms,exhibitions) and unsuitable for other uses.Subject to this proviso, the heading includes:. . .(7) Prepared slides for microscopic study [Emphasis added].

The prepared slide at issue is exclusively used for demonstrational pur-poses, most often in an educational setting. The slide must be used in con-cert with a microscope to be viewed in any detail, making it readily apparentthat it is incapable of being put to another type of use; a microscope is one ofthe instruments included in The Kids’ Collection. As a result, the preparedslide is completely and accurately described by the text to subheading9023.00.00, HTSUS. In addition, EN 90.23 specifically names preparedslides for microscopic study. In view of the foregoing, the prepared slides areclassified under subheading 9023.00.00, HTSUS.

HOLDING:The prepared slide containing an animal specimen is classified under sub-

heading 9023.00.0000, Harmonized Tariff Schedule of the United States An-notated, as ‘‘Instruments, apparatus and models, designed for demonstra-tional purposes (for example, in education or exhibitions), unsuitable forother uses, and parts and accessories thereof.’’ The 2004 general, column onerate of duty is Free.



EFFECT ON OTHER RULINGS:NY D87557, dated February 29, 1999 is MODIFIED. In accordance with




r

REVOCATION OF A RULING LETTER AND REVOCATIONOF TREATMENT RELATING TO TARIFF CLASSIFICATION

OF A CERTAIN MEN’S UPPER BODY GARMENTS

AGENCY: Bureau of Customs and Border Protection; Departmentof Homeland Security.

ACTION: Revocation of a tariff classification ruling letter and revo-cation of treatment relating to the classification of certain men’s up-per body garments.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19U.S.C. 1625(c)), this notice advises interested parties that Customsand Border Protection (CBP) is revoking one ruling letter relating tothe tariff classification of certain men’s upper body garments underthe Harmonized Tariff Schedule of the United States Annotated(HTSUSA). CBP is also revoking any treatment previously accordedby it to substantially identical merchandise. Notice of the proposedaction was published on December 1, 2004, in Volume 38, Number49, of the CUSTOMS BULLETIN. CBP received no comments in re-sponse to the notice.


FOR FURTHER INFORMATION CONTACT: Kelly Herman,Textiles Branch at (202) 572–8713.


BACKGROUND

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’These concepts are premised on the idea that in order to maximize


voluntary compliance with customs laws and regulations, the tradecommunity needs to be clearly and completely informed of its legalobligations. Accordingly, the law imposes a greater obligation onCBP to provide the public with improved information concerning thetrade community’s responsibilities and rights under the customs andrelated laws. In addition, both the trade and CBP share responsibil-ity in carrying out import requirements. For example, under section484 of the Tariff Act of 1930, as amended (19 U.S.C. §1484), the im-porter of record is responsible for using reasonable care to enter,classify and value imported merchandise, and provide any other in-formation necessary to enable CBP to properly assess duties, collectaccurate statistics and determine whether any other applicable legalrequirement is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), as amended by section 623 of Title VI, notice proposingto revoke one ruling letter pertaining to the tariff classification ofcertain men’s upper body garments was published in the December1, 2004, CUSTOMS BULLETIN, Volume 38, Number 49. No com-ments were received.

As stated in the proposed notice, this revocation will cover any rul-ings on this merchandise that may exist but have not been specifi-cally identified. Any party who has received an interpretive ruling ordecision (i.e., a ruling letter, internal advice memorandum or deci-sion or protest review decision) on the merchandise subject to thisnotice should have advised CBP during the notice period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP is re-voking any treatment previously accorded by CBP to substantiallyidentical transactions. This treatment may, among other reasons, bethe result of the importer’s reliance on a ruling issued to a thirdparty, CBP personnel applying a ruling of a third party to importa-tions of the same or similar merchandise or the importer’s or CBP’sprevious interpretation of the HTSUSA. Any person involved in sub-stantially identical transactions should have advised CBP duringthis notice period. An importer’s failure to advise CBP of substan-tially identical merchandise or of a specific ruling not identified inthis notice, may raise issues of reasonable care on the part of the im-porter or its agents for importations of merchandise subsequent tothe effective date of the final decision on this notice.

In NY K84208, dated March 18, 2004, CBP ruled that a men’s up-per body garment was classified in heading 6205, HTSUSA, as amen’s man-made fiber shirt. Since the issuance of that ruling, CBPhas reviewed the classification of this item and has determined thatthe cited ruling is in error. We have determined that the article isproperly classified in heading 6201, HTSUSA, as a garment similarto a windbreaker.


Pursuant to 19 U.S.C. 1625(c)(1), CBP is revoking NY K84208 andany other ruling not specifically identified, to reflect the proper clas-sification of certain men’s upper body garments according to theanalysis contained in HQ 9671881, set forth as an attachment to thisdocument. Additionally, pursuant to 19 U.S.C. 1625(c)(2), CBP is re-voking any treatment previously accorded by CBP to substantiallyidentical merchandise.

In accordance with 19 U.S.C. 1625(c), this ruling will become effec-tive 60 days after publication in the CUSTOMS BULLETIN.




Attachment

r


HQ 967188January 28, 2005


MARK R. SANDSTROM, ESQ.1400 16th Street N.W. Suite 400Washington, D.C. 20036

RE: Revocation of New York Ruling Letter (NY) K84208, dated March 18,2004; Classification of certain men’s upper body garments.

DEAR MR. SANDSTROM:This is in response to your letter of July 19, 2004, on behalf of your client,

Holloway Sportswear, Inc., in which you request reconsideration of NewYork Ruling Letter (NY) K84208, issued to your client on March 18, 2004,concerning the classification under the Harmonized Tariff Schedule of theUnited States (HTSUS) of certain men’s upper body garments. The men’supper body garments were classified in subheading 6205.30.2070, HTSUS,which provides for ‘‘Men’s or boys’ shirts: Of man-made fibers: Other: Other,Other: Other: Men’s.’’ You assert that based on the appearance and charac-teristics of the men’s upper body garments, they are classified in subheading6201.93.3000, HTSUS, which provides for ‘‘Men’s or boys’ overcoats,carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers andsimilar articles (including padded, sleeveless jackets), other than those of

1 HQ 967188 has been modified since the publication of the proposed notice of revocationto incorporate earlier CBP rulings that support the position taken. No substantive changeshave been made.


heading 6203: Anoraks (including ski jackets), windbreakers and similar ar-ticles (including padded, sleeveless jackets): Of man-made fibers: Other:Other: Other: Water resistant.’’ Since the issuance of that ruling, CBP hasreviewed the classification of this item and has determined that the citedruling is in error.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act, Pub. L. 103–182, 107Stat. 2057, 2186 (1993), notice of the proposed revocation of NY K84208,dated March 18, 2004, was published in the Customs Bulletin, Volume 38,Number 49, on December 1, 2004. CBP received no comments during the no-tice and comment period which closed on December 31, 2004.

FACTS:The submitted sample is a men’s upper body garment which you have

identified as a short sleeve pullover jacket, style 9058. It is made of 100%woven nylon fabric, features short sleeves, a short stand up collar, a partialfront opening beginning at the neck and extending down for approximatelyfive inches which is secured shut with a zipper, a tunneled hemmed bottomwith an elasticized drawcord threaded through it, and a six inch long sidevent with a zipper closure on the left side. The garment is designed with agenerous cut to allow for it to be worn over another garment.

ISSUE:Whether the Style 9058 is classifiable as men’s shirts in heading 6205,

HTSUS, or as men’s windbreakers under heading 6201, HTSUS.

LAW AND ANALYSIS:Classification of goods under the HTSUSA is governed by the General

Rules of Interpretation (GRI). GRI 1 provides that classification shall be de-termined according to the terms of the headings of the tariff schedule andany relative section or chapter notes. In the event that the goods cannot beclassified solely on the basis of GRI 1, and if the headings and legal notes donot otherwise require, the remaining GRI may then be applied. The Harmo-nized Commodity Description and Coding System Explanatory Notes (EN),constitute the official interpretation at the international level. While neitherlegally binding nor dispositive, the EN provide a commentary on the scope ofeach heading of the HTSUSA and are generally indicative of the proper in-terpretation of the headings.

In K84208, it was determined that the upper body garment was not classi-fiable as an outerwear jacket under heading 6201, HTSUS, because the gar-ment does not possess sufficient jacket features. In making the distinctionbetween a shirt classifiable under heading 6205, HTSUS, and a jacket underheading 6201, HTSUS, CBP applies The Guidelines for the Reporting of Im-ported Products in Various Textile and Apparel Categories, CIE 13/88,(‘‘Guidelines’’). These Guidelines set forth eleven criteria typically found onouterwear coats/jackets and further note that ‘‘Garments not possessing atleast three of the listed features will be considered on an individual basis.’’

In circumstances such as these, where the identity of a garment is am-biguous for classification purposes, reference to the Guidelines is appropri-ate. The Guidelines were developed and revised in accordance with theHTSUS to ensure uniformity, to facilitate statistical classification, and to as-sist in the determination of the appropriate textile categories established for


the administration of the Arrangement Regarding International Trade inTextiles. The Guidelines offer the following with regard to the classificationof men’s or boys’ shirt-jackets:

Three-quarter length or longer garments commonly known as coats,and other garments such as . . . waist length jackets fall within this cat-egory . . . A coat is an outerwear garment which covers either the upperpart of the body or both the upper and lower parts of the body. It is nor-mally worn over another garment, the presence of which is sufficient forthe wearer to be considered modestly and conventionally dressed for ap-pearance in public, either indoors or outdoors or both. . . .

* * *

C) Shirt-jackets have full or partial front openings and sleeves, and atthe least cover the upper body from the neck area to the waist. . . . Thefollowing criteria may be used in determining whether a shirt-jacket isdesigned for use over another garment, the presence of which is suffi-cient for its wearer to be considered modestly and conventionallydressed for appearance in public, either indoors or outdoors or both:

(1) Fabric weight equal to or exceeding 10 ounces per square yard. . . .(2) A full or partial lining.(3) Pockets at or below the waist.(4) Back vents or pleats. Also side vents in combination with backseams.(5) Eisenhower styling.(6) A belt or simulated belt or elasticized waist on hip length or longershirt-jackets.(7) Large jacket/coat style buttons, toggles or snaps, a heavy-duty zipperor other heavy-duty closure, or buttons fastened with reinforcing threadfor heavy-duty use.(8) Lapels.(9) Long sleeves without cuffs.(10) Elasticized or rib-knit cuffs.(11) Drawstring, elastic or rib-knit waistband.

* * *

Garments having features of both jackets and shirts will be catego-rized as coats if they possess at least three of the above listed featuresand if the result is not unreasonable. . . Garments not possessing atleast three of the listed features will be considered on an indi-vidual basis. [Emphasis added]

See Guidelines for the Reporting of Imported Products in Various Textileand Apparel Categories, CIE 13/88 at 5–6 (Nov. 23, 1988) and the CBP In-formed Compliance Publication (ICP) What Every Member of the Commu-nity Should Know About: Apparel Terminology Under the HTSUS, (Jan.,2004).

CBP recognizes that the garment at issue is a hybrid garment, possessingfeatures of both shirts and jackets. A physical examination of the garment atissue reveals that it possesses one of the Guidelines jacket criteria: the gar-ment has a drawstring waistband. The garment therefore must be consid-ered on an individual basis.

The ENs for heading 6205 state in pertinent part:


The heading does not cover garments having the character of wind-cheaters, wind jackets, etc. of heading 62.01, which generally have atightening at the bottom, or of jackets of heading 62.03, which gener-ally have pockets below the waist. Sleeveless garments are also ex-cluded.

The subject merchandise has tightening at the bottom and is constructed ofwoven nylon fabric typically used in windbreakers. These features and theoversized cut allowing the garment to be worn over other apparel cause thegarment to have the character of a wind-jacket.1 The subject merchandise istherefore precluded from classification as a shirt of heading 6205, HTSUS,pursuant to the EN.

The next issue is whether the garment at issue is classifiable as a wind-breaker or similar article of heading 6201, HTSUS. All such decisions aresomewhat subjective and must be made on a case-by-case basis consideringthe available facts. The Explanatory Notes (EN) to heading 6101, which ap-ply mutatis mutandis to the articles of heading 6201, HTSUS, state: ‘‘Thisheading covers . . . garments for men or boys, characterised by the fact thatthat they are generally worn over all other clothing for protection againstthe weather.’’

The upper body garment is constructed from a woven nylon fabric which istypically used in windbreakers. The subject merchandise will provide a de-gree of protection against the weather due to the woven nylon fabric used inthe construction of the garment and the overall styling of the garment in-cluding a zipper that allows the stand-up collar to be zipped closed. See HQ957628, dated February 28, 1995, and HQ 956982, dated November 22,1994, classifying similar woven nylon garments as jackets, similar to wind-breakers, in headings 6201 and 6202, HTSUS, respectively. Although thesubject garment possesses short sleeves, the merchandise is similar to gar-ments which have been classified as windbreakers or wind-cheaters andwhich are typically worn by golfers. See HQ 964181, dated April 4, 2001,classifying a short-sleeve pullover constructed of material typical of thatused in windbreakers as a jacket, similar to a windbreaker, in heading 6201,HTSUS. As was noted in HQ 964181, shorter sleeves may be preferable tosome golfers who want more flexibility in their swing and do not want to behampered by long sleeves. The subject garment is much like the jacketsworn by golfers or other athletes for warmth or for protection from lightrain. Indeed the hang tag attached to the sample indicates that it is bothwind and water resistant.

The hang tag also markets the upper body garment as a jacket and indi-cates that it has generous sizing. The side vent further allows the upperbody garment to be worn over other upper body garments. A review of vari-ous internet retailer sites indicates that the subject garment is marketedand sold as a pullover jacket. A catalog description of the subject garmentadvertises it as a warmup garment with coordinating pants. Accordingly, themerchandise is classifiable as an article similar to a men’s windbreaker un-der heading 6201, HTSUS.

1 We note, however, that a tightening at the bottom of the garment alone would not pre-clude classification as a shirt of heading 6205, HTSUS. See 957876, dated September 20,1995, classifying a men’s woven shirt with a rib knit waistband in heading 6205, HTSUS.


You claim that the subject merchandise is water resistant but have notsubmitted any information which validates such claim. The Additional U.S.Note to Chapter 62 addresses the term ‘‘water resistant’’ and states in perti-nent part:

For the purposes of [subheading 6201.93.30], the term ‘‘water resistant’’means that garments classifiable in those subheadings must have a wa-ter resistance (see ASTM designations D 3600–81 and D 3781–79) suchthat, under a head pressure of 600 millimeters, not more than 1.0 gramof water penetrates after two minutes when tested in accordance withAATCC Test Method 35–1985. This water resistance must be the resultof a rubber or plastics application to the outer shell, lining, or inner lin-ing.

The port of entry may perform such test for water resistant determinationsand if the subject merchandise meets the aforementioned standards of U.S.Additional Note, Chapter 62, HTSUSA, the subject merchandise will be clas-sified in subheading 6201.93.30, HTSUS.

HOLDING:NY K84208, dated March 18, 2004, is hereby revoked. In accordance with


If the men’s upper body garment, style 9058, passes the water resistancetest specified in Chapter 62, U.S. Note 2, HTSUS, then the applicable HTSsubheading for the garment will be 6201.93.3000, HTSUS, which providesfor ‘‘Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleevelessjackets), other than those of heading 6203: Anoraks (including ski jackets),windbreakers and similar articles (including padded, sleeveless jackets): Ofman-made fibers: Other: Other: Other: Water resistant.’’ The duty rate willbe 7.1 percent ad valorem. The textile quota category is 634.

If the men’s upper body garment, style 9058, does not pass the water re-sistance test specified in Chapter 62, U.S. Note 2, HTSUS, then the appli-cable HTS subheading for the garment will be 6201.93.3511, HTSUS, whichprovides for ‘‘Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (in-cluding ski-jackets), windbreakers and similar articles (including padded,sleeveless jackets), other than those of heading 6203: Anoraks (including skijackets), windbreakers and similar articles (including padded, sleevelessjackets): Of man-made fibers: Other: Other: Other: Other: Men’s.’’ The appli-cable rate of duty is 27.7 percent ad valorem. The textile quota category is634.

Quota/visa requirements are no longer applicable for merchandise whichis the product of World Trade Organization (WTO) member countries. Thetextile category number above applies to merchandise produced in non-WTOmember-countries. Quota and visa requirements are the result of interna-tional agreements that are subject to frequent renegotiations and changes.To obtain the most current information on quota and visa requirements ap-plicable to this merchandise, we suggest you check, close to the time of ship-ment, the ‘‘Textile Status Report for Absolute Quotas’’ which is available onour web site at www.cbp.gov. For current information regarding possible tex-tile safeguard actions on goods from China and related issues, we refer you


to the web site of the Office of Textiles and Apparel of the Department ofCommerce at otexa.ita.doc.gov.



r

REVOCATION OF RULING LETTER AND TREATMENTRELATING TO CLASSIFICATION OF A RETICULATED FOAM

FILTER RING

AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security.

ACTION: Notice of revocation of a ruling letter and treatment re-lating to tariff classification of a reticulated foam filter ring.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19U.S.C. 1625(c)), as amended by section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that Customs and Border Protection (‘‘CBP’’) is re-voking a ruling letter pertaining to the tariff classification, underthe Harmonized Tariff Schedule of the United States Annotated(HTSUSA), of a reticulated foam filter ring and to revoke any treat-ment previously accorded by CBP to substantially identical transac-tions. Notice of the proposed action was published in the CustomsBulletin on December 15, 2004. No comments were received in re-sponse to this notice.

EFFECTIVE DATE: This revocation is effective for merchandiseentered or withdrawn from warehouse for consumption on or afterApril 17, 2005.

FOR FURTHER INFORMATION CONTACT: Keith Rudich,General Classification Branch, (202) 572–8782.


BACKGROUND

On December 8, 1993, Title VI, (Customs Modernization), of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’), became effective.Title VI amended many sections of the Tariff Act of 1930, asamended, and related laws. Two new concepts which emerge fromthe law are ‘‘informed compliance’’ and ‘‘shared responsibility.’’ Theseconcepts are premised on the idea that in order to maximize volun-


tary compliance with CBP laws and regulations, the trade commu-nity needs to be clearly and completely informed of its legal obliga-tions. Accordingly, the law imposes a greater obligation on CBP toprovide the public with improved information concerning the tradecommunity’s responsibilities and rights under the CBP and relatedlaws. In addition, both the trade and CBP share responsibility incarrying out import requirements. For example, under section 484 ofthe Tariff Act of 1930, as amended, (19 U.S.C. §1484) the importer ofrecord is responsible for using reasonable care to enter, classify andvalue imported merchandise, and provide any other information nec-essary to enable CBP to properly assess duties, collect accurate sta-tistics and determine whether any other applicable legal require-ment is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), as amended by section 623 of Title VI, this notice advisesinterested parties that CBP intends to revoke a ruling letter pertain-ing to the tariff classification of a reticulated foam filter ring. Al-though in this notice CBP is specifically referring to one ruling, NYK80327, this notice covers any rulings on this merchandise whichmay exist but have not been specifically identified. CBP has under-taken reasonable efforts to search existing data bases for rulings inaddition to the one identified. No further rulings have been found.Any party who has received an interpretive ruling or decision (i.e.,ruling letter, internal advice memorandum or decision or protest re-view decision) on the merchandise subject to this notice, should ad-vise CBP during this notice period.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.1625(c)(1)), as amended by section 623 of Title VI, a notice was pub-lished on December 15, 2004, in the Customs Bulletin Vol. 38, No.51, proposing to revoke NY K80327, dated November 21, 2003. Thisruling pertained to the tariff classification of a reticulated foam filterring. No comments were received in response to this notice.

As stated in the proposed notice, this revocation will cover any rul-ings on this merchandise which may exist but have not been specifi-cally identified. Any party who has received an interpretive ruling ordecision (i.e., ruling letter, internal advice memorandum or decisionor protest review decision) on the merchandise subject to this notice,should have advised CBP during the comment period.

Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19U.S.C. 1625(c)(2)), as amended by section 623 of Title VI, CBP is re-voking any treatment previously accorded by CBP to substantiallyidentical transactions. This treatment may, among other reasons, bethe result of the importer’s reliance on a ruling issued to a thirdparty, CBP personnel applying a ruling of a third party to importa-tions of the same or similar merchandise, or the importer’s or CBP’sprevious interpretation of the HTSUSA. Any person involved in sub-


stantially identical transactions should have advised CBP duringthe notice period. An importer’s failure to advise CBP of substan-tially identical transactions or of a specific ruling not identified inthe notice, may raise issues of reasonable care on the part of the im-porter or their agents for importations of merchandise subsequent tothe effective date of this final notice.

In NY K80327, dated November 21, 2003, CBP found that a reticu-lated foam filter ring was classified in subheading 8421.39.8015,HTSUSA, as centrifuges, including centrifugal dryers; filtering orpurifying machinery and apparatus, for liquids or gases; partsthereof: filtering or purifying machinery and apparatus for gases:other: other: other.

CBP has reviewed the matter and determined that the correctclassification of the reticulated foam filter ring is in subheading8421.31.0000, HTSUSA, which provides for centrifuges, includingcentrifugal dryers; filtering or purifying machinery and apparatus,for liquids or gases; parts thereof: filtering or purifying machineryand apparatus for gases: intake air filters for internal combustionengines.

Pursuant to 19 U.S.C. 1625(c)(1), CBP is revoking NY K80327,and any other ruling not specifically identified, to reflect the properclassification of the merchandise pursuant to the analysis set forthin Headquarters Ruling Letter (HQ) 966942, attached to this docu-ment. Additionally, pursuant to 19 U.S.C. 1625(c)(2), CBP is revok-ing any treatment previously accorded by CBP to substantially iden-tical transactions.

Dated: February 2, 2005



Attachment



HQ 966942February 2, 2005

CLA–2 RR:CR:GC 966942 KBRCATEGORY: ClassificationTARIFF NO.: 8421.31.0000

KARL F. KRUEGERDANZAS AEI INTERCONTINENTAL29200 Northwestern HighwaySouthfield, MI 48034

RE: Revocation of NY K80327; Reticulated Foam Filter Ring

DEAR MR. KRUEGER:This is in reference to New York Ruling Letter (NY) K80327, issued to you

by the Customs and Border Protection (‘‘CBP’’), National Commodity Spe-cialist Division, New York, on November 21, 2003, on behalf of Purolator Fil-ters, a division of Arvin Meritor of Dexter, Missouri. That ruling concernedthe classification of a reticulated foam filter ring, under the HarmonizedTariff Schedule of the United States Annotated (HTSUSA). We have re-viewed NY K80327 and determined that the classification provided for thereticulated foam filter ring is incorrect.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), asamended by section 623 of Title VI (Customs Modernization) of the NorthAmerican Free Trade Agreement Implementation Act (Pub. L. 103–182, 107Stat. 2057), a notice was published on December 15, 2004, in Vol. 38, No. 51of the Customs Bulletin, proposing to revoke NY K80327. No comments werereceived in response to this notice.

FACTS:In NY K80327, it was determined that the reticulated foam filter ring was

classifiable in subheading 8421.39.8015, HTSUSA, as centrifuges, includingcentrifugal dryers; filtering or purifying machinery and apparatus, for liq-uids or gases; parts thereof: filtering or purifying machinery and apparatusfor gases: other: other: other. The reticulated foam filter ring is also referredto as a ‘‘foam wrap’’ and a ‘‘pre-filter.’’ The article is a piece of open cellpolyurethane foam approximately three feet, nine inches long with a widthof four inches and a thickness of just under ½ inch. The four inch ends of thefoam are sewn together to create a ring. The reticulated foam filter ring isintended to fit around the outside of a primary radial air filter element ringwhich is composed of a pleated cellulose, resin impregnated paper inside aplastic and metal-screen casing. The combined air filter is intended for in-stallation in an automotive engine. The reticulated foam filter ring is in-tended to act as a pre-filter to remove larger and coarser particles, extendingthe life of the primary air filter element. The reticulated foam filter ringsare sold in conjunction with the primary air filter element as well as soldseparately as replacements. A sample of the reticulated foam filter ring witha primary air filter element was submitted for our review.

We have reviewed that ruling and determined that the classification of thereticulated foam filter ring is incorrect. This ruling sets forth the correctclassification.


ISSUE:What is the correct classification under the HTSUSA of a reticulated foam

filter ring for use with a primary air filter element in an automotive engine?

LAW AND ANALYSIS:Merchandise is classifiable under the Harmonized Tariff Schedule of the

United States Annotated (HTSUSA) in accordance with the General Rules ofInterpretation (GRIs). Under GRI 1, merchandise is classifiable according tothe terms of the headings of the tariff schedule and any relative Section orChapter Notes. In the event that the goods cannot be classified on the basisof GRI 1, and if the headings and legal notes do not otherwise require, theremaining GRIs may then be applied.

In interpreting the headings and subheadings, CBP looks to the Harmo-nized Commodity Description and Coding System Explanatory Notes (EN).Although not legally binding, they provide a commentary on the scope ofeach heading of the HTSUSA. It is CBP’s practice to follow, whenever pos-sible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89–80,54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

8421 Centrifuges, including centrifugal dryers; filtering or puri-fying machinery and apparatus, for liquids or gases; partsthereof:

* * * * *

Filtering or purifying machinery and apparatus forgases:

8421.31.0000 Intake air filters for internal combustion engines

8421.39 Other:

8421.39.80 Other:

8421.39.8015 Other

* * * * *

Parts:

* * * * *

8421.99.00 Other:

8421.99.0080 Other

The article at issue is a reticulated foam filter ring for use with a primaryair filter in an automotive engine. The ENs for heading 8421, HTSUSA, inpertinent part, describe articles in this heading:

(II)(B) Filtering or purifying machinery, etc., for gases.

These gas filters and purifiers are used to separate solid or liquid par-ticles from gases, either to recover products of value . . . , or to eliminateharmful materials (e.g., dust extraction, removal of tar, etc., from gasesor smoke fumes, removal of oil from steam engine vapours).


They include:

(1) Filters and purifiers acting solely by mechanical or physi-cal means; these are of two types. In the first type, . . . the sepa-rating element consists of a porous surface or mass (felt, cloth,metallic sponge, glass wool, etc.). In the second type, separation inachieved by suddenly reducing the speed of the particles drawnalong with the gas, so that they can then be collected by gravity,trapped on an oiled surface, etc. Filters of these types often incor-porate fans or water sprays.

Filters of the first type include:

(i) Intake air filters for internal combustion engines. These of-ten combine the two systems described above.

CBP has previously found that an air filter for an automobile engine isclassified in subheading 8421.31.0000, HTSUSA. See NY B89510 (October 9,1997). However, the instant article is a ‘‘pre-filter’’ for an automobile air fil-ter. The instant article is reticulated foam which wraps around the primaryair filter element. Section XVI Note 2(a), HTSUSA, states:

Parts which are goods included in any of the headings of chapter 84 or85 (other than headings 8409, 8431, 8448, 8466, 9473, 8485, 8503, 8522,8529, 8538 and 8548) are in all cases to be classified in their respectiveheadings;

Section XVI Note 2(b), HTSUSA, states:

Other parts, if suitable for use solely or principally with a particularkind of machine, or with a number of machines of the same heading (in-cluding a machine of heading 8479 or 8543) are to be classified with themachines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503,8522, 8529 or 8538 as appropriate. However, parts which are equallysuitable for use principally with the goods of headings 8517 and 8525 to8528 are to be classified in heading 8517;

The ENs for Section XVI at General, (II) Parts (Section Note 2), statesthat ‘‘parts which in themselves constitute an article covered by a heading ofthis Section . . . ; these are in all cases classified in their own appropriateheading even if specially designed to work as part of a specific machine.’’ TheEN language for Section XVI Note 2 was cited by the court in Nidec Corp. v.United States, 861 F. Supp. 136 (CIT 1994), aff’d. 68 F.3d 1333 (Fed. Cir.1995). The court, applying the EN for Section XVI Note 2, determined that ifa good can be classified in its own heading in accordance with Legal Note2(a), then classification as a part under Legal Note 2(b) is inappropriate. Seealso HQ 962946 (May 1, 2000), HQ 952026 (July 23, 1992), HQ 963219 (Feb-ruary 5, 2001). Therefore, applying Note 2(a) and the court’s reasoning tothe instant reticulated foam filter ring, directs classification of the article inits own appropriate subheading, 8421.31.0000, HTSUSA, and not as a part.See HQ 962623 (July 22, 1999)(finding that an air filter drum element for anautomobile air conditioning/heat filter was not a filter ‘‘part’’ of subheading8421.99.00, HTSUSA, but should be classified as a filter article itself).

CBP has previously found that pre-filters are classified in heading 8421,HTSUSA, as filters, not as parts of filters. See NY 898762 (June 29, 1994)and NY 898508 (June 28, 1994). In particular, CBP found that a pre-filterintended for automotive use was classified in subheading 8421.31.0000,


HTSUSA, as an intake air filter for internal combustion engines. See NY899838 (August 4, 1994). Therefore, we agree with the decision you receivedin NY K80327, that the instant reticulated foam filter ring should not beclassified as a ‘‘part’’, but should be classified in its own right.

Air filters have long been made from foam and have been classified inheading 8421, HTSUSA. See NY 815060 (September 28, 1995), NY I86500(October 18, 2002), and NY 810649 (June 8, 1995). The instant reticulatedfoam filter ring acts as a pre-filter for the primary air filter element. How-ever, although it is considered a ‘‘pre-filter’’, the reticulated foam filter ringis itself a ‘‘filter’’. The reticulated foam filter ring actually removes un-wanted particles from the air prior to reaching the primary air filter elementand the automotive engine, thus, protecting the engine and extending thelife of the primary air filter element. In the instant case, NY K80327 classi-fied the pre-filter in the general ‘‘basket’’ provision of subheading8421.39.8015, HTSUSA. However, as discussed above, the instant article isitself an air filter. Pursuant to GRI 1, the pre-filter is classified in subhead-ing 8421.31.0000, HTSUSA, as intake filters for internal combustion en-gines, and not in the ‘‘basket’’ ‘‘other’’ provision of subheading 8421.39.8015,HTSUSA. See, e.g., Apex Universal, Inc. v. United States, CIT Slip Op. 98–69(May 21, 1998) (‘‘Classification of imported merchandise in a basket provi-sion is appropriate only when there is no tariff category that covers the mer-chandise more specifically. [citations omitted]’’); HQ 966659 (December 15,2003); HQ 962759 (November 10, 1999). Therefore, although called a ‘‘pre-filter’’, the instant reticulated foam filter ring for use in automobile enginesfor tariff purposes is a filter classified under subheading 8421.31.0000,HTSUSA, as an intake air filter for internal combustion engines.

HOLDING:The reticulated foam filter ring is classified under subheading

8421.31.0000, HTSUSA, as centrifuges, including centrifugal dryers; filter-ing or purifying machinery and apparatus, for liquids or gases; partsthereof: filtering or purifying machinery and apparatus for gases: intake airfilters for internal combustion engines. The 2004 column one, general dutyrate is 2.5% ad valorum. Duty rates are provided for your convenience andare subject to change. The text of the most recent HTSUSA and the accom-panying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:NY K80327 dated November 21, 2003, is revoked. In accordance with 19

U.S.C. §1625(c), this ruling will become effective sixty (60) days after publi-cation in the Customs Bulletin.




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